THIS IS FINAL VERSION AS ADOPTED. ALSO SEE #090730. SPECIAL ITEM NO. 1

Title:

RESOLUTION APPROVING AGREEMENTS FOR THE DEVELOPMENT AND CONSTRUCTION OF THE MARLINS’ BALLPARK, RELATED PUBLIC INFRASTRUCTURE AND PARKING FACILITIES, FOR THE OPERATION OF THE COMPLETED BALLPARK AND PARKING FACILITIES, FOR THE MARLINS’ GUARANTY OF THE BALLPARK DEVELOPER’S OBLIGATIONS, AND FOR THE MARLINS’ ASSURANCES REGARDING NON-RELOCATION; WAIVING COMPETITIVE BIDDING FOR SELECTION OF DEVELOPER FOR CONSTRUCTION OF BALLPARK AND RELATED PUBLIC INFRASTRUCTURE, FOR SELECTION OF OPERATOR OF BALLPARK, FOR THE CONSTRUCTION OF PUBLIC INFRASTRUCTURE WORK RELATED TO BALLPARK, AND PURCHASE OF BUILDING MATERIALS, SUPPLIES AND EQUIPMENT; AUTHORIZING CONVEYANCE OF CERTAIN NAMING RIGHTS TO STADIUM PREMISES; DELEGATING TO THE COUNTY MAYOR OR COUNTY MAYOR’S DESIGNEE THE AUTHORITY TO PERFORM CERTAIN ACTS, EXPEND FUNDS UP TO $9,300,000, AND EXERCISE CERTAIN CANCELLATION AND TERMINATION PROVISIONS, SUBJECT TO THE PARAMETERS SET FORTH IN THIS RESOLUTION AND THE STADIUM AGREEMENTS; AUTHORIZING COUNTY MAYOR OR COUNTY MAYOR’S DESIGNEE TO EXECUTE ALL SUCH AGREEMENTS UPON FULFILLMENT OF CERTAIN CONDITIONS; AND WAIVING REQUIREMENTS OF RESOLUTION NO. R-130-06 RELATED TO FINAL FORM AND EXECUTION BY NON-GOVERNMENTAL PARTIES [SEE ORIGINAL ITEM UNDER FILE NO. 090730]

Indexes:

BASEBALL

Sponsors:

Bruno A. Barreiro, Prime Sponsor

Jose "Pepe" Diaz, Co-Sponsor

Dennis C. Moss, Co-Sponsor

Sunset Provision:
No

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History

Acting Body

Date

Agenda Item

Action

Sent To

Due Date

Returned

Pass/Fail

County Attorney

4/6/2009

Assigned

Geri Bonzon-Keenan

Board of County Commissioners

3/23/2009

SPECIAL ITEM NO. 1 AMENDED

Adopted as amended

P

REPORT:

(See Report Under Agenda Item Suppl. Spec Item No. 1, Legislative File No. 090731.)
County Attorney Robert Cuevas read Special Item Nos. 1, 2, 3, 4, and 5 into the record.
Hearing no objection, the Commission considered Special Item Nos. 1-3 simultaneously.
The public hearing was opened and the following persons appeared before the Commission:
Ms. Carol Bowen, Director of Governmental Affairs, Associated Builders and Contractors, 3730 Coconut Creek Parkway Suite 200, Coconut Creek, spoke in support of the foregoing proposed resolution.
Mr. Andy Madtes, 1525 NW 167 Street, Miami, spoke in support of this proposed resolution.
Bishop Lee Variety, CEDIA Inc., 712 NW 62 Street, Miami, spoke in support of this proposed resolution.
Mr. Oswaldo Lento, Immediate Past President, Latin Builders Association, and Owner, Everglades Lumber, 6950 Sunrise Drive, Coral Gables, spoke in support of this proposed resolution.
Mr. Greg Mikenas, 4197 Kivey Drive, Lake Worth, spoke in support of this proposed resolution and urged the County to not allow the jobs generated by this project to be outsourced.
Mr. Bruce Freedman, 133 NW 100 Avenue, Plantation, spoke in support of this proposed resolution.
Ms. Brenda Riggins, President, Mars Contractors, Inc., 19504 SW 135 Court, Miami, spoke in support of this proposed resolution.
Mr. Daniel Garcia, Red Design Group, 1221 SW 27 Avenue Suite 200, Miami, spoke in support of this proposed resolution.
Mr. Christopher Beaton, 7705 Travelers Tree Drive, Boca Raton, spoke in support of this proposed resolution.
Ms. Sue Freedman, 133 NW 100 Avenue, Plantation, spoke in support of this proposed resolution.
Mr. Michael Bernstine, Miami Beach, spoke in opposition to this proposed resolution.
Mr. Joe Castillo, 20660 SW 124 Court, Miami, spoke in support of this proposed resolution.
Mr. Ronald Camones, 10960 SW 71 Street, Miami, spoke in support of this proposed resolution.
Ms. Runette Butts, 1622 NE 110 Terrace, Miami, spoke in opposition to this proposed resolution.
Mr. Hashim Benford, 2144 SW 11 Street, Miami, spoke in opposition to this proposed resolution.
Mr. Eduardo Muhina, Red Design Group, 1221 SW 27 Avenue Suite 200, Miami, spoke in support of this proposed resolution.
Ms. Susan Weitz, 7441 Wayne Avenue #11-R, Miami Beach, spoke in opposition to this proposed resolution.
Mr. Al Huston, 799 NW 62 Street, Miami, spoke in support of this proposed resolution.
Mr. Miguel Fuentes, Florida Carpenter’s Regional Council, 295 West 79 Place, Hialeah, spoke in support of this proposed resolution.
Mr. Valbert Guthrie, 1660 NW 130 Street, Miami, spoke in support of this proposed resolution.
Mr. Ashley Bosch, President, Builders Association of South Florida, spoke in support of this proposed resolution.
Mr. J.C. Calleiro, 4942 SW 87 Place, Miami, spoke in support of this proposed resolution.
Mr. Richard Gomez, Board of Directors, Builders Association of South Florida, and Vice-President, TGSV Enterprises, 10040 SW 33 Street, Miami, spoke in support of this proposed resolution.
Mr. Frank Bradley, 842 NE 121 Street, Biscayne Park, spoke in support of this proposed resolution.
Gunnery Sergeant Louis Slagle, 1881 79 Street, North Bay Village, spoke in support of this proposed resolution.
Mr. Willie Worlds, 2285 NW 102 Street, Miami, spoke in support of this proposed resolution.
Mr. Dago Castillo, 34 NW 17 Place #22, Miami, spoke in support of this proposed resolution.
Mr. Robert Plummer, 295 W 79 Place, Hialeah, spoke in support of this proposed resolution.
Mr. Dan Mendoza, 295 W 79 Place, Hialeah, spoke in support of this proposed resolution.
Ms. Olga Ramos, 3312 NW 9 Court, Miami, spoke in opposition to this proposed resolution.
Ms. Gloria Atkins, 261 NW 30 Street, Miami, spoke in opposition to this proposed resolution.
Mr. Regonald Munnings, Power U, 1130 NW 2 Avenue #302, Miami, spoke in opposition to this proposed resolution.
Mr. Jay Staley, President, American Federation of State, County, and Municipal Employees (AFSME) Local 121, 11560 SW 81 Terrace, Miami, spoke in opposition to this proposed resolution.
Mr. Frank Nero, Beacon Council, spoke in support of this proposed resolution.
Mr. Robert Dollar, 7821 SW 99 Street, Miami, spoke in opposition to this proposed resolution.
Mr. Martin Margulies, 445 Grand Bay Drive, Key Biscayne, spoke in opposition to this proposed resolution.
Mr. Bill Diggs, Miami-Dade Chamber of Commerce, 11380 NW 27 Avenue, Miami, spoke in support of this proposed resolution.
Ms. Judith Gibson, 180 Barbados Drive, Jupiter, spoke in support of this proposed resolution.
Mr. Bill Riley, Business Manager, International Brotherhood of Electrical Workers Local 349, and President, South Florida Building Trades Council, 1657 NW 17 Avenue, Miami, spoke in support of this proposed resolution.
Mr. Clodoardo Barcia, 8341 SW 27 Street, Miami, spoke in support of this proposed resolution.
Rev. Abraham Thomas, 17320 NW 17 Avenue, Miami Gardens, spoke in support of this proposed resolution.
Ms. Fran Bohnsack, Urban Environment League, 5700 SW 67 Avenue, Miami, spoke in opposition to this proposed resolution and spoke in support of a baseball stadium at the former site of the Miami Arena.
Mr. Ramon Guillen, 338 NW 34 Street Apt. 3, Miami, spoke in support of this proposed resolution.
Mr. Juan Carlos Munoz, 14051 SW 54 Street, Miami, spoke in opposition to this proposed resolution.
Mr. Frank Del Vecchio, 301 Ocean Drive Apt. 604, Miami Beach, requested the Commission amend this proposed resolution to delete the covenant to use non ad valorem tax revenues if CDT and TDT were insufficient, and to substitute a security that the Marlins or Major League Baseball would provide for any shortages.
Mr. Paul Zilio, 1140 Quail Avenue, Miami Springs, spoke in support of this proposed resolution.
Mr. Fred Frost, President, South Florida American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), 2500 NW 97 Avenue #201, Miami, spoke in support of this proposed resolution.
Mr. Jeff Zinic, 701 Arena Boulevard, Miami, spoke in opposition to this proposed resolution.
Ms. Helen B. Williams, 9801 NW 25 Avenue, Miami, spoke in opposition to this proposed resolution.
Mr. Jerold Coburn, 5811 SW 63 Avenue, Miami, spoke in opposition to this proposed resolution.
Mr. Harry Weitzer, 3723 NE 214 Street, Miami, spoke in opposition to this proposed resolution.
Ms. Jane Winston, 1845 SW 18 Street, Miami, spoke in support of this proposed resolution.
Mr. Luis Quintero, Park Director, City of Sweetwater, 250 SW 114 Avenue, Miami, spoke in support of this proposed resolution.
Mr. Sixto Tamarit, 26504 SW 149 Place, Miami, spoke in support of this proposed resolution.
Mr. Barry Johnson, President and Chief Executive Officer, Greater Miami Chamber of Commerce, spoke in support of this proposed resolution.
Mr. Robert Peret, 706 Sanctuary Cove, West Palm Beach, spoke in support of this proposed resolution.
Mr. Jesus Ojito, 6144 E 6 Avenue, Hialeah, spoke in support of this proposed resolution.
Mr. Mark Trowbridge, President, Coral Gables Chamber of Commerce, spoke in support of this proposed resolution.
Mr. Benjamin Chiszar, 1789 NE Miami Gardens Drive #601, spoke in opposition to this proposed resolution.
Mr. Lazaro Guerra, 180 NE 168 Street, Miami, spoke in support of this proposed resolution.
Mr. Gustavo Tovar, 1758 W Flagler Street, spoke in support of this proposed resolution.
Ms. Alicia Diaz, 800 NW 13 Avenue #901, Miami, spoke in support of this proposed resolution.
Mr. Enrique Gonzalez, 789 NW 13 Avenue #213, Miami, spoke in support of this proposed resolution.
Mr. Dante Starks, 13230 NW 7 Avenue, Miami, spoke in support of this proposed resolution.
Ms. Renita Holmes, 6118 NW 7 Avenue, Miami, spoke in opposition to this proposed resolution.
Mr. Grady Muhammad, 6130 NW 7 Avenue, Miami, spoke in opposition to this proposed resolution. He spoke in support of a baseball stadium at the former site of the Miami Arena.
Mr. Albert Mirandh, 2112 NE 38 Road, Homestead, spoke in support of this proposed resolution.
Mr. Howard Kosowsky, 3832 Shipping Avenue, Miami, spoke in support of this proposed resolution.
Mr. Jack Russell, 9850 SW 80 Drive, Miami, spoke in opposition to this proposed resolution.
Mr. Gary Johnson, 2320 NW 92 Street, Miami, spoke in opposition to this proposed resolution.
Mr. Hector Camps, 8101 Biscayne Boulevard Suite 306, Miami, spoke in support of this proposed resolution.
Ms. Gloria Sotolongo, 2985 SW 11 Street, Miami, spoke in support of this proposed resolution.
Mr. Mariano Cruz, 1227 NW 26 Street, Miami, spoke in opposition to this proposed resolution.
Ms. Patricia Knapp, 5900 N Surf Road, North Hollywood Beach, spoke in opposition to this proposed resolution.
Mr. Albert Bryan, 6510 SW 29 Street, spoke in opposition to this proposed resolution.
Ms. Cira Rabago, 1403 NW 7th Street Apt. 1008, spoke in support of this proposed resolution.
Mr. Roy Hardemon, 1854 NW 67 Street, requested the Commission amend this proposed resolution to ensure the community would benefit from the stadium agreements.
Mr. Lester Aviles, 21380 SW 112 Avenue, spoke in support of this proposed resolution.
The public hearing was closed after no other persons appeared in response to Chairman Moss’ call for people wishing to be heard.
Mayor Manny Diaz, City of Miami, noted elected officials should be positive about the future and ensure that local government made investments that would serve future generations. He requested the Commission support this proposed resolution.
Mayor Julio Robaina, City of Hialeah, noted he supported this proposed resolution. He pointed out the City of Hialeah had voted in straw ballots since 1999 in favor of the Marlins staying in the County. He noted the Marlins and Major League Baseball had committed to dedicated funding sources for the baseball academy in Hialeah to serve the youth of South Florida.
Mr. Jeffrey Loria, Florida Marlins owner, expressed appreciation to all who attended and expressed their opinions on this proposed resolution. He noted his commitment to the Marlins and the community was the same as it was when he first bought the Marlins. He pointed out the Marlins had invested millions of dollars into the community, had been involved in thousands of hours of community service annually, and had cared about the visitors and the residents of the County and the City of Miami. He pledged that he was totally and absolutely committed to see the stadium, the Marlins, the County, and its residents flourish.
Mr. Bob Dupuy, President, Major League Baseball, noted he had been involved in more than 12 new stadium projects and all of them had involved political debate and all of the stadiums had a positive impact after they were built. He noted a Major League Baseball team provided unique benefits and unmatched international exposure to communities. Mr. Dupuy explained Major League Baseball shared the County’s interest in the Marlins performing well. He pointed out the Marlins were in compliance with all Major League Baseball rules, and that the subservience language in this proposed resolution was standard language in all Major League Baseball agreements. Mr. Dupuy clarified this proposed resolution included language to protect the County if the subservience rules injured the County. He noted the Major League Baseball constitution mandated the provision the Major League Baseball could declare the stadium was unusable for any reason. He pointed out the County was also protected in this proposed resolution against Major League Baseball declaring the stadium unusable. Mr. Dupuy noted the Marlins owner was taking substantial risks in this proposed resolution and he was contributing an above average percentage of the costs.
Mr. Joe Sanchez, Chairman, City of Miami Commission, requested the County support this proposed resolution. He noted the stadium was a stimulus project for this community. He suggested the commissioners cast their vote based on whether this proposed resolution would be good for the City of Miami, for the County, and for the residents they represented. He suggested the stadium would be an investment in the County, the City, and in the future.
Mr. David Samson, President, Florida Marlins, noted the Marlins were doing their best to help with community problems. He pointed out the only changes to the agreements in this proposed resolution since February 21, 2008, when the Commission adopted resolution no. R-188-08, which approved the terms of and authorized the County Mayor or his designee to execute the Baseball Stadium Agreement, were changes that would benefit the community. He noted Mr. Loria mandated he get a deal done so the Marlins could stay in this community. Mr. Samson explained the Marlins would surpass the aspirational goals in this proposed resolution. He pointed out the Marlins wanted to include minorities and the Marlins embraced diversity. He stressed that the Marlins wanted to help the Parks and Recreation Department and provide baseball diamonds to help children stay out of trouble and to be productive citizens. He noted the Marlins would consider hiring ex-convicts and would hold them to the same standard as other employees to be on time and to do the job well. Mr. Samson explained that history showed that new baseball stadiums generated development in the surrounding areas, and that this proposed resolution included a commitment from the County to develop the surrounding area and connect it with downtown. He noted the Marlins would not support the proposed funding for the stadium if CDT and TDT funds would not be available for additional projects while those funding sources were used to finance the stadium. Mr. Samson noted County Manager Burgess had negotiated these agreements that protected the County and the taxpayers. Mr. Samson requested the Commission support this proposed resolution.
Mayor Carlos Alvarez noted the stadium was a high priority for him. He explained that the issue of using public funds on a baseball stadium was a question asked in every County mayoral debate for the 2004 election, and that the other candidates running for mayor opposed the use of public funds, whereas he supported the use of public funds. He clarified that the public electing him as mayor indicated the public’s support for the proposed funding plan. Mayor Alvarez noted that creating jobs was an important issue in this item. He pointed out that the proposed revenue streams to fund the construction of the stadium had always been CDT, TDT, and PST, that during the 35 year financing plan the County would continue to experience economic ups and downs, and that the current economic crisis should not be an excuse to not approve the proposed financing. Mayor Alvarez explained that the County Administration had analyzed the growth of the CDT, TDT, and SFFT since their inception and used those factual figures to create a conservative financial plan. He noted he would not have approved that this proposed resolution be on the agenda if he was not comfortable with the ability of the County to finance the stadium.
County Manager Burgess presented a PowerPoint presentation on the Baseball Stadium Agreement in this proposed resolution. He explained the stadium should be built because major league baseball stadiums had a proven track record of revitalizing neighborhoods, and because 3,300 jobs per year would be created. He noted the Orange Bowl site provided a place that previously had a sports stadium on it, and the County would spend much less on public infrastructure than other jurisdictions did for new stadiums. He pointed out the Orange Bowl site was 1.5 miles away from the government center, was even closer to the Civic Center, and was in an area that would be part of the future growth and expansion of the urban core. County Manager Burgess noted the Marlins intended to start construction on the stadium in July 2009, if the County met the July 1, 2009, deadline to secure financing.
County Manager Burgess pointed out this proposed resolution contained five agreements: Non-Relocation Agreement, Assurance Agreement, City Parking Agreement, Operating Agreement, and Construction Administration Agreement.
NON-RELOCATION AGREEMENT
County Manager Burgess explained that the Non-Relocation Agreement would obligate the Marlins to use the name Miami Marlins and to stay in Miami for the longer of 35 years or the term of the Marlins’ debt to the County. He pointed out the Non-Relocation Agreement increased the payout percentage for profits on the sale of the Marlins to 70% in year 1, 60% in year 2, 50% in year 3, and 30% year 4, which were significantly higher than were previously proposed.
ASSURANCE AGREEMENT
County Manager Burgess explained the Assurance Agreement would allow the County to have a subordinate lien on the Marlins that would make the County’s interest superior to the rights of any unsecured creditor to the Marlins if the Marlins could not meet their obligations to construct the stadium.
CITY PARKING AGREEMENT
County Manager Burgess noted the City Parking Agreement was primarily an agreement between the City of Miami and the Marlins, however, the County would sign the agreement. He explained the City would not have to construct all 6,000 parking spaces if the construction costs exceeded $94 million. He pointed out the Marlins would pay for each parking space each year and for each game.
OPERATING AGREEMENT
County Manager Burgess pointed out the term of the Operating Agreement was 35 years or the term of the debt. The Marlins’ rent payment would be $2.3 million the first year and it would increase by 2% each year, the County Manager explained. He noted the County and the Marlins would contribute $750,000 per year and the City of Miami would contribute $250,000 per year to the Capital Reserve Fund to maintain this County owned stadium. He pointed out the Marlins would provide 10,000 complimentary tickets annually, would allow the County and the City to use the stadium for an unlimited number of events during the off season and for four events each during the season, would allow both the County and the City to use a “community suite” designated for charity or public use for 40 games per year. County Manager Burgess noted the Marlins would donate $100,000 in the first seven and a half years of this agreement to the County Park Foundation, as well as $25,000 to the City Park Foundation. He pointed out the Commission would need to approve a waiver to allow the Marlins to be the Stadium Operator.
CONSTRUCTION ADMINISTRATION AGREEMENT
County Manager Burgess noted Hunt/Moss Construction (Hunt/Moss) and HOK Sports (HOK) had worked together before, and they had a superior track record for designing and building baseball and sports facilities. He explained that the Marlins conducted a competitive bidding process to select Hunt/Moss as the Construction Manager for the stadium He pointed out the Commission had to approve the Marlins as the Stadium Developer and to approve Hunt/Moss as the contractor for the public infrastructure by a 2/3 majority. He clarified the 2/3 majority approval of Hunt/Moss as the contractor for the public infrastructure would protect the County from cost overruns caused by government and make the Marlins responsible for cost overruns.
County Manager Burgess explained the stadium was a $644.5 million project: $515 million for the stadium, $94 million for parking garages, $26 million for public infrastructure and LEED (Leadership in Energy and Environmental Design) certification, $5 million in public infrastructure reserves, and $4.3 million in soft costs. He noted URS validated that the $515 million budget and the 34 month schedule for the stadium were very achievable. County Manager Burgess clarified the revenue sources for the $515 million were revenues that were previously scheduled to go towards the Orange Bowl, or that were limited by the Code of Miami-Dade County to use on a stadium. He pointed out the City of Miami and the County would equally share the public infrastructure costs. He noted the Marlins’ $155 million contribution to the $644.5 million stadium project would be $30 million in cash equity, $90 million of debt, and $35 million in rent payments to the County. County Manager Burgess noted the County would provide 70% of the costs, which was below the 75% average support from public funds for Major League Baseball stadiums built since 1990.
County Manager Burgess noted the CAA required the Marlins to build the stadium in compliance with the County’s CSBE, SBE, CWP, and Responsible Wages ordinances.
County Manager Burgess noted the County could terminate these agreements for convenience by June 1, 2009, or July 1, 2009. He explained the County planned to avoid using General Fund monies by structuring the financing and building CDT and TDT reserves. He stressed the County used thousands of municipal and government capital appreciation bond financings nationwide in the last four years, used the 7.6% average annual growth of the CDT since it began in 1984, used the 6.2% average annual growth in the TDT since it began in 1988, and used the 5.5% average annual growth in the PST since it began in 1992 to prepare a conservative long-term financing plan that assumed lower growth rates. County Manager Burgess used graphs of several different bed-tax growth projections to illustrate that the County would have the ability to pay its current and new debt obligations, to build a debt service reserve, and to pay for the stadium without accessing the non-ad valorem revenues that were the secondary pledge in this agreement. He pointed out the County often used non-ad valorem revenues as a secondary pledge to enhance the credit worthiness of debt that would be incurred.
It was moved by Commissioner Barreiro that this proposed resolution be bifurcated to exclude the four (4) requested bid waivers. This motion was seconded by Commissioner Diaz, and upon being put to a vote, passed by a vote of 13-0.
It was moved by Commissioner Barreiro that this proposed resolution be adopted. This motion was seconded by Commissioner Diaz.
Chairman Moss noted each Commissioner would have an opportunity to discuss this proposed resolution. He explained that commissioners could proffer amendments to this proposed resolution that would be subject to Commissioner Barreiro accepting them as part of his motion. He clarified the motion to bifurcate the four requested bid waivers would separate the parts of this proposed resolution that required a super majority vote for approval from the parts that required a simple majority.
Discussion ensued among Commissioner Martinez, Chairman Moss, and County Attorney Cuevas clarifying whether the funding for the stadium had been bifurcated or had remained in the body of this proposed resolution.
Commissioner Rolle clarified Commissioner Barreiro, the maker of the motion, would control whether a proffered amendment was included as part of the motion.
Commissioner Gimenez pointed out that a majority of the Commission could override the ruling established by Chairman Moss that only Commissioner Barreiro could accept proffered amendments as part of the motion on the floor.
Chairman Moss requested the Commission vote now whether to override his ruling for amending the motion.
Following further discussion among the Commission and the County Attorney regarding Chairman Moss’ procedural decision regarding proffered amendments, it was moved by Commissioner Gimenez that Chairman Moss’ ruling be overturned and that commissioners could submit amendments that would be debated and voted on, and upon receiving a majority vote, the amendments would become part of the motion to adopt this proposed resolution.
Responding to Commissioner Sosa’s inquiry regarding the City of Miami needing to reconsider this proposed resolution if the County amended it, County Attorney Cuevas advised the Board that the City of Miami could not accept any substantive changes to this proposed resolution without the City Commission adopting them.
Following further discussion among commissioners regarding the procedure for proposed amendments, County Attorney Cuevas clarified the City of Miami City Attorney and staff had authority to approve non-substantive changes without the City Commission voting on them.
Discussion continued among the Commission regarding the procedure that would be followed for the Commission amending this proposed resolution.
Hearing no other questions or comments on the motion to overturn Chairman Moss’ ruling and that commissioners could submit amendments that would be debated and voted on, and upon receiving a majority vote, the amendments would become a part of the motion to adopt this proposed resolution, the Commission proceeded to vote, and upon being put to a vote, failed by a vote of 4-9 (Commissioners Barreiro, Edmonson, Jordan, Martinez, Seijas, Sosa, Souto, Diaz and Chairman Moss voted “No”).
Commissioner Sosa questioned whether the County would use property taxes, in any way, to support the provisions in any of the agreements in this proposed resolution.
County Manager Burgess noted the County would not use property taxes, except as a secondary pledge to the $81 million of CDT bonds. He pointed out the County had never accessed a secondary pledge or defaulted on a payment. He explained that the County would enter a covenant pledging to budget $35 million from non ad valorem tax revenues as debt-service payments in the capital outlay reserve fund, however, the County would also budget in the capital outlay reserve fund the Marlins’ rent payments. County Manager Burgess clarified the County would ensure that the Marlins’ rent payments would equal or exceed the debt-service payments.
Commissioner Sosa noted she was not pleased that the Marlins had agreed to have only 50% of the workforce on the stadium be county residents. She questioned whether the percentage could be increased to ensure jobs for unemployed county residents.
Mr. Samson noted the Marlins intended to have the workforce be as close to 100% county residents as possible.
Responding to Commissioner Sosa’s inquiry regarding the Marlins making affordable tickets available for every game, Assistant County Attorney Geri Bonzon-Keenan advised this proposed resolution had a provision that would ensure the Marlins provided those tickets for every game.
Commissioner Sosa questioned whether the County would have any liabilities if the Commission approved the bid waivers in this proposed resolution.
County Manager Burgess noted the bid waivers were essential to protect the County’s interests.
In response to Commissioner Sosa’s inquiry regarding the change to the CAA that a City of Miami designee would sit on the Review Committee that established the SBE, CSBE, and CWP participation goals, County Manager Burgess explained the Review Committee was a County committee and all members of the committee would be County representatives except for baseball related issues when the City designee would be on the Committee.
Commissioner Gimenez expressed concern that the County Manager projected the CDT and TDT revenues using assumptions. He pointed out the United States was having its deepest recession since World War II and the economic uncertainty was high. He expressed concern regarding the General Fund being a secondary pledge to the CDT bonds. Commissioner Gimenez expressed concern that the Marlins were asking the County for $500 million to build the stadium without providing the County information regarding the team’s financial situation.
In response to Commissioner Gimenez’s inquiry regarding the impact of Mr. Loria selling 49% of team ownership after the Commission approved this proposed resolution, Assistant County Attorney Bonzon-Keenan advised the County would receive 0% of the profits on the sale of that 49% of team ownership.
Discussion ensued between Commissioner Gimenez and Assistant County Attorney Bonzon-Keenan regarding the County having limited ability to be compensated if Major League Baseball moved the Marlins out of Miami.
Commissioner Gimenez explained this proposed resolution did not have a tangible result that would benefit the community.
Commissioner Gimenez requested this proposed resolution be amended to allow the Commission to rescind any authority delegated to the County Mayor or his designee in all the agreements in this proposed resolution.
Responding to Commissioner Barreiro’s question whether Commissioner Gimenez’s requested amendment was a substantive amendment, Assistant County Attorney Bonzon-Keenan advised the City of Miami Attorney would determine whether the requested amendment was substantive, however, she thought this requested amendment was specific to the County and that it would likely not be a substantive change.
Commissioner Barreiro noted he would accept Commissioner Gimenez’s requested amendment, subject to the City of Miami Attorney determining that the amendment was not substantive. He clarified that he would not accept any substantive amendments, and that he would consider all non-substantive amendments on a case-by-case basis.
Commissioner Gimenez requested this proposed resolution be amended to provide in Section 6 of the Non-Relocation Agreement that the only transfer of Marlins ownership that would be exempt from the requirements of Section 6 was the initial transfer of ownership from the controlling owner to Mr. Loria’s estate upon his death.
Commissioner Barreiro did not accept this requested amendment.
Commissioner Gimenez requested this proposed resolution be amended in Section 6 of the Non-Relocation Agreement, handwritten pages 343 and 344, that the percentage of the Net Proceeds of the sale of the franchise that the County and the City of Miami would share would be 10% for the term of this agreement beginning in year 1 of the Operational Phase, and that the imputed value of the franchise be the Net Proceeds from the sale of the franchise.
Commissioner Barreiro did not accept this requested amendment.
Commissioner Gimenez requested this proposed resolution be amended to waive formal bid procedures and to authorize the County Attorney’s Office to contract with an independent auditor, and other professionals as necessary, to review the stadium agreements and the documents to be made available by the Marlins and its affiliates, including the financial statements and the cash flow statements, in order to assess and prepare a report regarding the capability of the Marlins to meet its financial obligations in this proposed resolution, and that the County Attorney’s Office submit this report to the Commission before the County issued any baseball stadium bonds.
Commissioner Barreiro did not accept this requested amendment.
Commissioner Gimenez requested this proposed resolution be amended to remove all clauses that made the agreements in this proposed resolution subordinate to Major League Baseball Rules and Regulations.
Commissioner Barreiro did not accept this requested amendment. He noted Major League Baseball needed to be involved.
Commissioner Gimenez clarified he was concerned that Major League Baseball was not a party to this contract, however, it could override the conditions of this contract. He requested this proposed resolution be amended in the CAA to provide that a 2/3 majority of the County Commission was required to approve the use of General Fund monies on a pay-as-you-go basis or as a primary pledge to issue bonds in an amount sufficient to fund the County’s portion of this proposed resolution.
Commissioner Barreiro did not accept this requested amendment.
Commissioner Gimenez requested this proposed resolution be amended to provide that the County and the City of Miami share up to 10% of the gross revenues that the Operator would receive pursuant to Section 4.3 of the Operating Agreement, that this 10% would be shared on a pro rata basis based on what the County and City financially contributed to the stadium project, and that the tax exempt status of the County bonds would not be impacted.
Commissioner Barreiro did not accept this requested amendment.
Commissioner Seijas requested clarification regarding the provision on handwritten page 76 that CSBEs and SBEs with an actual place of business in the County, including areas designated as Neighborhood Development Zones (NDZ), would have an equal opportunity to compete for business in the Baseball Stadium Project.
Assistant County Attorney Bonzon-Keenan advised this provision would provide that any business within the County that was inside or outside the NDZ would have an equal opportunity to bid on the Baseball Stadium Project.
Following further discussion among Commissioner Seijas, Assistant County Attorney Bonzon-Keenan, and County Manager Burgess regarding the provisions of this proposed resolution, Commissioner Seijas requested this proposed resolution be amended to change on handwritten page 72 the words “desire to” to “shall” in Section 4.5 of the CAA.
Mr. Samson noted the County Administration would decide whether to pursue LEED certification and silver status for the stadium. He clarified the Marlins were committed to building the first retractable roof stadium that achieved silver status.
Commissioner Barreiro noted he would accept Commissioner Seijas’ requested amendment to Section 4.5 of the CAA.
Responding to Commissioner Seijas’ inquiry regarding the 5.81% CSBE goal for the architectural design of the stadium, Mr. Samson noted the Marlins were on schedule to surpass this CSBE goal.
Commissioner Seijas expressed concern regarding the language in the Non-Relocation Agreement that the Marlins would continue to engage in relocation talks until substantial completion was made on the stadium.
Assistant County Attorney Bonzon-Keenan advised the Marlins would commit to cease all relocation talks, except for relocation talks on temporarily relocating until the substantial completion of the stadium.
Mr. Samson noted the Marlins concurred with the Assistant County Attorney’s explanation of the language regarding relocation talks. He pointed out the Marlins’ existing lease at Dolphin Stadium would expire in 2010 and the Marlins would need a new lease for 2011.
In response to Commissioner Seijas’ concern regarding personal liability for this proposed resolution, County Attorney Robert Cuevas advised the Community Compact Agreement had been rescinded and that no Commissioner would be individually exposed.
Commissioner Heyman expressed concern that the majority of stadium supporters used the economy and jobs as their reasons for support. She pointed out the County could generate jobs and stimulate the economy by using the earmarked funds on other construction projects.
Responding to Commissioner Heyman’s comments regarding other eligible uses of the earmarked funds, County Manager Burgess explained that the light rail trolley to Miami Beach would have to be funded by the City of Miami Beach’s 2/3 share of CDT funds, and that this proposed resolution would use the City of Miami’s 1/3 share of CDT funds; that this proposed resolution would use the 20% share of the TDT that had to be used for projects in the City of Miami; and that the PST was established to fund debt service on bonds issued for professional sports facilities. He noted the funds that were earmarked for the stadium could not be used for education and social services.
Commissioner Heyman expressed concern that the County would pay $1.9 billion to repay the $300 million in bonds that it would issue for the stadium. She questioned the impact of a 0.5% rate increase on the cost to the County to repay the $300 million in bonds.
County Manager Burgess noted the County did not know the interest rates of the bonds until they were priced and could not accurately answer Commissioner Heyman’s question.
Responding to Commissioner Heyman’s question on the impact to the County if the State of Florida Department of Revenue (DOR) did not approve the County’s sales tax exemption procedures, Assistant County Attorney Bonzon-Keenan advised the County would have to fund up to $4.4 million more towards the stadium projects budget.
Commissioner Heyman pointed out the participation levels of CSBE, SBE, and CWP programs had been described as goals, aspirations, or interests. She questioned how legally binding these descriptions of those participation levels were.
Assistant County Attorney Bonzon-Keenan advised the Marlins were required to make good faith efforts to meet the aspirational goals and to establish outreach programs during construction and operation of the stadium with the intent to achieve these goals.
In response to Commissioner Heyman’s inquiry regarding the County having recourse if the Marlins did not meet the goals and aspirations in this proposed resolution, Assistant County Attorney Bonzon-Keenan advised the County’s only recourse was to file a lawsuit and argue that the Marlins did not make a good faith effort.
Commissioner Heyman requested this proposed resolution be amended to delete the General Fund as a secondary pledge in the CAA and to ensure that no General Funds would be used to fund the stadium.
Commissioner Barreiro did not accept Commissioner Heyman’s requested amendment.
Commissioner Heyman requested this proposed resolution be amended to include the performance and financial obligations of the Stadium Operator in the Operating Agreement as part of the Assurance Agreement.
Commissioner Barreiro did not accept Commissioner Heyman’s requested amendment.
Commissioner Heyman requested this proposed resolution be amended to include Major League Baseball as a party to the Non-Relocation Agreement that would be financially liable to the County if the Marlins left the County during the term of this agreement.
Commissioner Barreiro did not accept Commissioner Heyman’s requested amendment.
Commissioner Heyman requested this proposed resolution be amended in Section 6 of the Non-Relocation Agreement to provide that any transfer of team ownership after the initial transfer of ownership following the death of Mr. Loria to his designated heir would be subject to the County and City of Miami revenue sharing provisions of Section 6.
Commissioner Barreiro did not accept Commissioner Heyman’s requested amendment.
Commissioner Heyman requested this proposed resolution be amended to require the Marlins provide an irrevocable $20 million letter-of-credit for project cost overruns.
Commissioner Barreiro did not accept Commissioner Heyman’s requested amendment.
Commissioner Heyman requested this proposed resolution be amended to add a provision that the County would not be financially liable if the DOR did not approve the County’s sales tax exemption procedures.
County Manager Burgess pointed out the requested approval was contingent on the County being liable if the DOR did not approve the request.
Mr. Ray Baker, Assistant to the County Manager, County Executive Office, noted three of the four DOR representatives had given the County’s request a favorable review and the final review should be done in approximately one week.
Commissioner Barreiro did not accept Commissioner Heyman’s requested amendment.
Commissioner Heyman requested this proposed resolution be amended to delete in the CAA that CDT funds would be a funding source for the stadium.
Commissioner Barreiro did not accept Commissioner Heyman’s requested amendment.
Commissioner Heyman noted she would not support this proposed resolution. She explained the financial risk and exposure to the County was too great, especially during this economic recession.
Commissioner Edmonson expressed appreciation to the Marlins, the County Administration, and the County Attorney’s Office for their help on stadium issues.
In response to Commissioner Edmonson’s question regarding his intentions to sell ownership in the Marlins, Mr. Loria stated he did not intend to sell ownership in the Marlins.
Responding to Commissioner Edmonson’s request for an explanation of the meaning of the words “pledge” and “essential” in the last sentence of Section 6.2 in the CAA on handwritten page 86, Assistant County Attorney Bonzon-Keenan advised the County could not use non-ad valorem revenues to pay its obligations to the stadium without first paying existing debt obligations and without first adequately funding essential services.
Commissioner Edmonson questioned the County’s liability for delays in the purchase and transport of construction materials and equipment if DOR approved the County’s request that these purchases be tax exempt.
Assistant County Attorney Bonzon-Keenan advised Section 6.5.1 of the CAA excluded the County from liability related to the sales tax exemption program.
Responding to Commissioner Edmonson’s inquiry regarding the ability of the County to sell bonds for the stadium, County Manager Burgess noted the ability of the County to sell bonds for the stadium was unknown until the County tried to sell the bonds. He pointed out the County could cancel this agreement if the County could not sell the bonds for the TDT contribution.
Comissioner Edmonson noted, for the record, that many amendments made to the Baseball Stadium Agreement (BSA) when the City of Miami Commission adopted the BSA were amendments requested by County commissioners in private negotiations with the Marlins. She requested this proposed resolution be amended to add to the Operating Agreement the following language: “In the event of a national disaster, the Baseball Stadium may be used by the County as an emergency shelter or disaster recovery site at no cost to the County.”
Commissioner Barreiro noted he would accept Commissioner Edmonson’s requested amendment if the City of Miami did not deem this provision to be a substantive change.
Responding to Commissioner Martinez’s questions regarding the number of people from the local workforce that Hunt/Moss would employ to build the stadium, Mr. Ken Johnson, Vice-President, Hunt/Moss, explained Hunt/Moss usually held employee orientation for between 3,000 and 5,000 employees for each of the six Major League Baseball stadiums they had built.
Commissioner Martinez pointed out this proposed resolution did not guarantee a specific number or type of jobs for County residents. He stressed the importance of the County funds going to County residents working on the stadium.
Mr. Dupuy responded to Commissioner Martinez’s questions regarding the impact of the new stadium on the Marlins fielding a competitive team.
Commissioner Martinez questioned whether the CDT funds in this proposed resolution could be used for a light rail trolley from the City of Miami to the City of Miami Beach.
County Manager Burgess explained the CDT funds that could be used on a light rail trolley to Miami Beach was the 2/3 portion that was allocated to the City of Miami Beach. He clarified this proposed resolution would use the City of Miami’s 1/3 portion of CDT funds. He pointed out this proposed resolution would use TDT funds from the 20% portion that was limited to projects within the City of Miami.
Responding to Commissioner Martinez’s inquiry regarding the use of TDT funds for beach renourishment, County Manager Burgess explained the County ordinance regarding the use of TDT funds designated 60% for the Greater Miami Visitors Conventions Bureau, 20% for the City of Miami, and 20% for the County. He clarified this proposed resolution would use TDT funds from the City of Miami’s portion and the City of Miami had no beaches that needed renourishment.
Commissioner Martinez requested this proposed resolution be amended to give the County a 20% ownership share in the Marlins in return for its financial contribution to the stadium.
Mr. Sampson noted the Marlins would not agree to Commissioner Martinez’s requested amendment.
Following the County Manger responding to Commissioner Martinez’s questions regarding the County using $35 million from the Capital Outlay Reserve Fund to finance stadium construction, Commissioner Martinez expressed concern regarding the possibility of the County using general fund monies to pay for the stadium. He questioned whether the Mayor had guaranteed that the County would not use General Fund monies.
County Mayor Alvarez pointed out that the term of these agreements was 35 years, and that no one could guarantee whether General Fund monies would be used over that 35 year term.
Commissioner Martinez noted he could not support the proposed financing for the stadium in this proposed resolution.
Commissioner Jordan noted members of the community expressed concern regarding this proposed resolution not having definitive SBE, CSBE, and CWP goals. She explained the County could not, legally, include definitive goals. She pointed out the Department of Small Business Development (SBD) would review the 65 bid packages for work on the stadium and identify what trades or small businesses could be eligible to bid on each package and set SBE, CSBE, and CWP goals for the package.
Mr. Samson noted the Marlins would hold 12 outreach programs in the next 30 days to help small businesses become SBE, CSBE, and CWP certified.
In response to Commissioner Jordan’s inquiry regarding the time frame for the Marlins to build three baseball parks in each Commission district, Mr. Samson noted the Marlins would build at least one ballpark every year for the 35 year life of these agreements.
Responding to Commissioner Jordan’s question regarding how the County would provide services for the increased demand for small business needs, County Manager Burgess noted the County would have a representative at the stadium site for small business purposes. He explained that Major League Baseball, the Marlins, and the County would each pay 1/3 of the payroll costs for that County employee.
Commissioner Jordan pointed out that the County’s small business programs applied only to the construction of the stadium, and that those programs would apply to stadium operations only if the Marlins voluntarily applied them to the operations.
Mr. Samson noted the Marlins goal for the involvement of small businesses in stadium operations was 15% of the operating expenses.
Pursuant to Commissioner Jordan’s request that her requested amendment be read into the record, Assistant County Attorney Bonzon-Keenan read the following requested amendment on handwritten page 213, after the second complete sentence in Section 4.2 of the Operating Agreement:
“The Operator shall comply with the County’s Small Business Enterprise (SBE) program in awarding service agreements. The Operator shall create business opportunities for SBEs with a view to creating a minimum participation goal for SBEs of 15% of the total value of all service agreements. The final SBE goal shall be established by the County in accordance with the process set forth in the SBE program provisions. The SBE goal shall be subject to final approval by the Board and shall be submitted to the Board simultaneously with the final terms of the Outreach Program, as specified in Section 7.2 of the Agreement. The Operator shall comply with the terms of the SBE Program and shall submit annual compliance reports to the Department of Small Business Development. Any SBE which qualifies shall also be counted towards satisfying the local business initiatives described in Section 7.2 below.”
Commissioner Jordan clarified the intent of the SBE program was to help small businesses run by women, Hispanics, and blacks.
Commissioner Barreiro accepted Commissioner Jordan’s requested amendment if the City of Miami did not deem this provision to be a substantive change.
Commissioner Jordan pointed out the CSBE program was a County program and did not impact the City of Miami. She noted that her requested amendments related to ensuring small businesses were promptly paid in the CSBE program, and that these requested amendments would not increase the costs of this proposed resolution.
Pursuant to Commissioner Jordan’s request, Assistant County Attorney Bonzon-Keenan read Commissioner Jordan’s requested amendment on handwritten page 79 to add Section 5.2.1 Community Small Business Enterprises (CSBEs) as follows:
(a) The Construction Management Agreement shall provide that no CSBE entering into a contract or subcontract for $200,000 or less shall at any time be required to execute and deliver a payment and performance bond as a condition of executing such contract or subcontract or performing the work. The Construction Management Agreement shall further provide that any advertisement for bid or other competitive solicitation which contains a CSBE goal shall contain a notice of this exception.
(b) The Construction Management Agreement shall provide that whenever a payment and performance bond is required of a CSBE in connection with its work, each subcontractor which is not a CSBE shall to the same extent, proportionate to the value of the subcontract, be required to execute and deliver a payment and performance bond in connection with its work.
(c) The Construction Management Agreement shall provide that, at the option of a CSBE, the CSBE shall be paid up to five percent (5%) of the value of the subcontract, exclusive of contingencies, in advance, upon written evidence reasonably satisfactory to the Construction Manager and SBD of the CSBEs imminent expenditure of those funds for mobilization directly related to the work. Such written evidence may include, but is not limited to, executed contracts, purchase orders, and invoices.
(d) The Construction Management Agreement shall provide that, at the option of a CSBE, and provided that the CSBE is not in breach of its payment and performance obligations under the subcontract, the Construction Manager shall pay directly for the purchase of any material to be incorporated in the work which is the object of the CSBE’s subcontract. Such direct payment shall be made by dual party check made payable to the material supplier and the CSBE and shall be credited against the Construction Manager’s payment obligations under the subcontract and credited against the agreed items in the schedule of values where the materials were used.
(e) The Construction Management Agreement shall provide that the Stadium Developer shall retain from any payment otherwise due to the Construction Manager any amount owed by the Construction Manager to a CSBE, which amount has not be paid or has been withheld in violation of the prompt payment provisions of Section 10-33.02 of the Code of Miami-Dade County.
(f) The Construction Management Agreement shall provide that the retainage withheld from payments to CSBEs not exceed five percent (5%) after fifty percent (50%) completion of the construction services purchased under the CSBE’s contract, and that any and all amounts withheld in retainage under a CSBE’s contract be paid in full within ninety (90) days following the satisfactory completion of the CSBE’s work in compliance with its subcontract.
(g) The Construction Management Agreement shall provide that disputes between the Construction Manager and any CSBE shall be submitted to expedited alternative dispute resolution in a manner similar to that provided for in Section 14.2 of this Agreement.
(h) The Construction Manager shall not withhold or defer the payment of any claim to a CSBE which the Construction Manager believes should be payable to a CSBE based on the rationale that the claim is the subject of a payment requisition or change order request which has not been paid or funded. CSBE subcontracts shall not contain “pay when paid” clauses or similar clauses designed for that purpose.
(i) The Construction Management Agreement shall provide that within 48 hours of the Construction Manager becoming aware of a performance problem with a CSBE subcontractor, the Construction Manager shall notify the CSBE of such problem, in writing and with sufficient specificity to allow the CSBE to identify and redress the problem, and shall allow the CSBE a reasonable cure period.
(j) The Construction Management Agreement shall provide that any and all insurance requirements to be applicable to CSBEs shall be disclosed with specificity in the bid or other competitive solicitation documents for work with CSBE goals and that the Construction Manager shall not at any time impose any insurance requirement in connection with a CSBE that has not previously been disclosed in the bid or other competitive solicitation document for the work.
(k) The Construction Management Agreement shall require the Construction Manager to establish a program to verify worker’s compensation insurance coverage, unemployment taxes, withholding taxes and social security retention from any and all persons used for the performance of construction work in the Baseball Stadium Project.
Commissioner Jordan noted the proposed Section 5.2.1(a) was based on State Statute and was in the County’s CSBE ordinance.
Mr. Samson noted this proposed resolution had provisions requiring the Marlins to comply with all County ordinances. He noted the Marlins would not accept amending this proposed resolution to add Section 5.2.1(a), however, the Marlins would do what that proposed subsection required by following all provisions of the Code of Miami-Dade County.
County Attorney Cuevas advised that the existing State and County laws did not require performance bonds for CSBE projects below $200,000 and that the proposed Section 5.2.1(a) went beyond the limits of the County Code. He advised that Mr. Samson’s response indicated the Marlins did not accept this proposed amendment.
Commissioner Barreiro noted he would not accept subsection (a) in Commissioner Jordan’s requested amendment because it was more stringent than the existing County Code.
Mr. Samson noted the Marlins would accept subsections (d), (f), (i), and (j) in the proposed Section 5.2.1, if the City of Miami did not deem these provisions to be substantive changes.
Commissioner Jordan noted she would present legislation amending the CSBE program in the County Code to incorporate subsections (a), (b), (c), (e), (g), (h), and (k) in her requested amendment. She pointed out those subsections would not apply to this proposed resolution even if the Commission adopted the legislation she would present. She urged the Marlins to reconsider accepting these subsections.
County Attorney Cuevas advised that this proposed resolution had provisions in the CAA that the County and the City of Miami could be liable for cost overruns that resulted from changes in law that added to the cost of the project.
Commissioner Barreiro accepted subjections (d), (f), (i), and (j) in Commissioner Jordan’s requested amendment to add Section 5.2.1, if the City of Miami did not deem this provision to be a substantive change.
Pursuant to Commissioner Jordan’s request, Assistant County Attorney Bonzon-Keenan read Commissioner Jordan’s requested amendment to Section 5.2(g) of the CAA to read as follows:
“If the Construction Manager is unable to make up the deficit on future phases of the construction of the baseball stadium and the Construction Manager had failed to exercise reasonable good faith efforts to achieve such goals, then the Stadium Developer agrees to make a contribution equal to 200% of the deficit percentage of the construction phases in question into the Department of Business Development’s compliance trust fund.”
Commissioner Barreiro did not accept Commissioner Jordan’s requested amendment.
Commissioner Seijas noted this proposed resolution needed to be amended to be consistent with the amendments Commissioner Barreiro accepted from Commissioner Jordan. Commissioner Siejas asked that this proposed resolution be amended to add on handwritten page 81, in Section 5.4, of the Construction Administration Agreement, the letter (f) to read as follows: “receive reports and records pertaining to the Construction Outreach Program and the utilization of the Community Small Business Enterprise (CSBE), SBE, and Community Workforce Programs (CWP).”
County Attorney Cuevas explained the forgoing requested amendment would add one task to the function of the Project Coordination Team.
Commissioner Barreiro accepted Commissioner Seijas’ requested amendment if the City of Miami did not deem this provision to be a substantive change.
Commissioner Seijas requested this proposed resolution be amended to add on handwritten page 81 in Section 5.5 of the Construction Administration Agreement after the first sentence, if the City of Miami did not deem this provision to be a substantive change, the following language: “In addition, the Outreach Administrator shall be given the opportunity to review any and all documents reasonably necessary to verify compliance with the Construction Outreach Program and utilization of CSBE, SBE, and CWP programs.”
Commissioner Barreiro accepted Commissioner Seijas’ requested amendment if the City of Miami did not deem this provision to be a substantive change.
Commissioner Seijas requested this proposed resolution be amended to add on handwritten page 85 at the end of Section 5.14 of the Construction Administration Agreement, if the City of Miami did not deem this provision to be a substantive change, the following language: “The County shall have the right to contract with an independent professional (Outreach Administrator) and such Outreach Administrator shall be tasked with the responsibility of assisting the County, the City, and the Team with the development of the Construction Outreach Program, and with monitoring compliance of such program, and CSBE, SBE, and CWP programs.”
Commissioner Seijas requested this proposed resolution be amended to add on handwritten page 122 to the end of Section 15.27 of the Construction Administration Agreement, if the City of Miami did not deem this provision to be a substantive change, the following language: “The Outreach Administrator shall have the right to audit the books, records, and documents of the Stadium Developer relating to the hiring and work of CSBEs, SBEs, workers pursuant to the CWP, and to the Construction Outreach Program. The Stadium Developer shall provide in the Construction Management Agreement that the Construction Manager and its subcontractors shall also keep and maintain all books, records, and documents of all kinds related to their obligations under the Construction Management Agreement and any related subcontracts and that the Outreach Administrator shall have the right to audit the Construction Manager’s and subcontractor’s books.”
Commissioner Barreiro accepted Commissioner Seijas’ requested amendments if the City of Miami did not deem these provisions to be a substantive change.
County Attorney Cuevas advised that the amendments proffered by Commissioner Seijas regarding the Outreach Administrator intended to include the Outreach Administrator as part of the Project Coordination Team.
Mr. Samson noted the Marlins were opposed to the Outreach Administrator being included as part of the Project Coordination Team. He explained the Marlins would agree to put the proposed Section 5.21 (d), (f), (i), and (j) into the Marlins’ agreement with the Construction Manager, therefore, the CAA would not need to be amended and the uncertainty regarding substantive changes would be avoided.
Commissioner Souto noted, for the record, his vote on this proposed resolution was not for sale. He expressed concern regarding the current condition of the economy. He explained he wanted to keep the County’s economy alive.
Responding to Commissioner Souto’s inquiries regarding the ability of the Marlins to expand its donations to the Parks Foundation of Miami-Dade County and the reason those donations would be for seven and a half years, Mr. Samson explained that the Marlins would donate $500,000 per year into the community for the term of this agreement, and that $100,000 of that $500,000 would be earmarked for the Parks Foundation for the first seven and a half years. He noted the Marlins would have additional opportunities to partner with the Parks and Recreation Department.
Following Commissioner Souto stressing his concern that the donations to the Parks Foundation were not guaranteed beyond seven and a half years, Mr. Samson noted he would work with Commissioner Souto to ensure the Parks and Recreation Department and the Marlins were always working together.
Commissioner Rolle requested this proposed resolution be amended to add a provision directing the County Mayor to submit monthly reports to the Board on the Construction Manager’s progress and compliance with the CSBE, SBE, CBE, CWP, Construction Outreach Program, and Outreach Program.
Commissioner Barreiro accepted Commissioner Rolle’s requested amendment.
Commissioner Rolle requested this proposed resolution be amended to delete on handwritten page 77, from the third line the following language: “The SBD has recommended that the” and to add “shall,” to that same line following “the Construction Manager” in Section 5.2(b) of the Operating Agreement, if the City of Miami did not deem this revision to be a substantive change.
County Manager Burgess noted the County could mandate that the County’s clearing house be used, but not make it the only clearing house used by the Construction Manager.
Commissioner Barreiro noted he would accept Commissioner Rolle’s requested amendment with modified language to reflect the County Manager’s comments.
Commissioner Rolle asked the County Manger to ensure that the location of the clearing houses was well publicized. He requested that this proposed resolution be amended to mandate that a construction outreach program be located at the union hall on NW 62 Street between 7th and 8th Avenues.
Commissioner Barreiro did not accept Commissioner Rolle’s requested amendment.
Responding to Commissioner Rolle’s inquiry regarding the input commissioners would have on the 39 new or improved baseball fields, Mr. Samson noted the Marlins intended to work with the Commissioner of the District where the baseball fields would be located.
Commissioner Rolle questioned how entities like the Contractor Resource Center and the labor unions would fit into this proposed resolution.
County Manager Burgess recommended that Commissioner Rolle meet with the Marlins to discuss how those entities could be used.
Commissioner Rolle noted he supported this proposed resolution, however, he was more supportive of other projects that had a more direct impact on his district.

Legislative Text

TITLE

RESOLUTION APPROVING AGREEMENTS FOR THE DEVELOPMENT AND CONSTRUCTION OF THE MARLINS’ BALLPARK, RELATED PUBLIC INFRASTRUCTURE AND PARKING FACILITIES, FOR THE OPERATION OF THE COMPLETED BALLPARK AND PARKING FACILITIES, FOR THE MARLINS’ GUARANTY OF THE BALLPARK DEVELOPER’S OBLIGATIONS, AND FOR THE MARLINS’ ASSURANCES REGARDING NON-RELOCATION; WAIVING COMPETITIVE BIDDING FOR SELECTION OF DEVELOPER FOR CONSTRUCTION OF BALLPARK AND RELATED PUBLIC INFRASTRUCTURE, FOR SELECTION OF OPERATOR OF BALLPARK, FOR THE CONSTRUCTION OF PUBLIC INFRASTRUCTURE WORK RELATED TO BALLPARK, AND PURCHASE OF BUILDING MATERIALS, SUPPLIES AND EQUIPMENT; AUTHORIZING CONVEYANCE OF CERTAIN NAMING RIGHTS TO STADIUM PREMISES; DELEGATING TO THE COUNTY MAYOR OR COUNTY MAYOR’S DESIGNEE THE AUTHORITY TO PERFORM CERTAIN ACTS, EXPEND FUNDS UP TO $9,300,000, AND EXERCISE CERTAIN CANCELLATION AND TERMINATION PROVISIONS, SUBJECT TO THE PARAMETERS SET FORTH IN THIS RESOLUTION AND THE STADIUM AGREEMENTS; AUTHORIZING COUNTY MAYOR OR COUNTY MAYOR’S DESIGNEE TO EXECUTE ALL SUCH AGREEMENTS UPON FULFILLMENT OF CERTAIN CONDITIONS; AND WAIVING REQUIREMENTS OF RESOLUTION NO. R-130-06 RELATED TO FINAL FORM AND EXECUTION BY NON-GOVERNMENTAL PARTIES

BODY

WHEREAS, this Board previously adopted Resolution No. R-188-08 which provided for negotiation and finalization of Stadium Agreements for the development and construction of the Marlins Ballpark, related Public Infrastructure and City Parking Facilities; and
WHEREAS, the following Stadium Agreements are being presented to this Board for approval: the Construction Administration Agreement by and among the County, the City of Miami (the “City”), and the Marlins Stadium Developer, LLC (the “Stadium Developer”); the Operating Agreement by and among the County, the City of Miami, and the Marlins Stadium Operator, LLC (the “Stadium Operator”); the City Parking Agreement by and among the County, the City of Miami, and the Stadium Operator; the Non-Relocation Agreement by and among the County, the City of Miami, and the Florida Marlins, L.P.; and the Assurance Agreement by and among the County, the City of Miami, and the Florida Marlins, L.P. (hereafter collectively referred to as the “Stadium Agreements”), each in substantially the form attached to this resolution as Attachments “A”, “B”, “C”, “D” and “E”, respectively and incorporated herein by this reference, for the development, design, construction and operation of a Florida Marlins ballpark, associated public infrastructure and parking facilities; and
WHEREAS, this Board finds that the planning, design and construction of the Baseball Stadium Project and Public Infrastructure Work (as such terms are defined in the Construction Administration Agreement), the operation of the Stadium Premises (as such term is defined in the Operating Agreement) and the performance of the Stadium Agreements are in the best interests of the County and will serve a paramount public purpose; and
WHEREAS, the Baseball Stadium Project and Public Infrastructure Work (as such terms are defined in the Construction Administration Agreement) are collectively referred to in this resolution as the “Ballpark Project”; and
WHEREAS, the County Mayor has submitted to this Board a written recommendation that it is in the best interests of Miami-Dade County to waive formal bid procedures and the provisions of Section 5.03(D) of the Miami-Dade County Charter and the Miami-Dade County Code in connection with the Stadium Agreements:
1. for the selection of the Stadium Developer as the developer of the Baseball Stadium Project and Public Infrastructure Work;
2. to authorize the County to directly purchase building materials, supplies and equipment for the Baseball Stadium Project and Public Infrastructure Work; and
3. for the selection of the Stadium Operator as the operator of the Stadium Premises,
a copy of which is attached to this resolution as Attachment “F,” and incorporated herein by this reference; and
WHEREAS, HOK Sport, Inc., the architect of record for the Ballpark Project, has provided a written recommendation that the Public Infrastructure Work be awarded to Hunt/Moss, a Joint Venture (“Hunt/Moss”) or another appropriately licensed contractor, without competitive selection, a copy of which is attached to this resolution as Attachment “G”; and
WHEREAS, this Board finds that, after consideration of and consistent with the written recommendation of HOK Sport, Inc. and the Mayor’s written recommendation, in accordance with Section 255.20, Florida Statutes, it is in the best interests of Miami-Dade County to waive formal bid procedures and the provisions of Section 5.03(D) of the Miami-Dade County Charter and the Miami-Dade County Code in connection with the Stadium Agreements to: (i) authorize the Stadium Developer to contract with Hunt/Moss for the construction of the Public Infrastructure Work, subject to the successful negotiation of the terms and conditions of the Construction Management Contract because Hunt/Moss has been competitively selected by the Stadium Developer as the construction manager to construct the Baseball Stadium Project and is uniquely qualified to undertake the project because the Public Infrastructure Work is affiliated with the Baseball Stadium Project; and (ii) in the alternative, to authorize the County to contract with an appropriately licensed contractor for the construction of the Public Infrastructure Work, because the time to competitively award the project will materially increase the cost of the project; and
WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying memorandum from the County Manager, a copy of which is incorporated herein by reference,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that:
Section 1. The foregoing recitals are incorporated in this resolution and are approved.
Section 2. This Board finds that it is in the best interest of Miami-Dade County to waive formal bid procedures in accordance with the provisions of Section 5.03(D) of the Home Rule Charter, Section 2-8.1 of the Code of Miami-Dade County, and the requirements of Administrative Order 3-38 in connection with the selection of the Stadium Developer as the developer of the Baseball Stadium Project and Public Infrastructure Work (as such terms are defined in the Construction Administration Agreement) and to approve the Construction Administration Agreement, for the reasons set forth above and as otherwise outlined in the accompanying memorandums, formal bidding being waived in this instance by a two-thirds (2/3) vote of the Board members present.
Section 3. This Board finds that it is in the best interest of Miami-Dade County to waive formal bid procedures in accordance with the provisions of Section 5.03(D) of the Home Rule Charter, Section 2-8.1 of the Code of Miami-Dade County, and the requirements of Administrative Order 3-38 in connection with the selection of the Stadium Operator as the operator of the Stadium Premises and to approve the Operating Agreement and the operating and other rights and obligations conferred therein, for the reasons set forth above and as otherwise outlined in the accompanying memorandum, formal bidding being waived in this instance by a two-thirds (2/3) vote of the Board members present.
Section 4. This Board finds that it is in the best interest of Miami-Dade County to waive formal bid procedures in accordance with the provisions of Section 5.03(D) of the Home Rule Charter, Section 2-8.1 of the Code of Miami-Dade County, and the requirements of Administrative Order 3-38 in connection with the purchase by the County of building materials, supplies and equipment for the Baseball Stadium Project and the Public Infrastructure Work listed on Exhibit “J” to the Construction Administration Agreement, for the reasons set forth above and as otherwise outlined in the accompanying memorandum, formal bidding being waived in this instance by a two-thirds (2/3) vote of the Board members present.
Section 5. This Board finds that it is in the best interest of Miami-Dade County to waive formal bid procedures in accordance with the provisions of Section 5.03(D) of the Home Rule Charter, Section 2-8.1 of the Code of Miami-Dade County, and the requirements of Administrative Order 3-38 to authorize the Stadium Developer to contract with Hunt/Moss for the management of the construction of the Public Infrastructure Work, subject to the successful negotiation of the terms and conditions of the Construction Management Contract and the City Commission’s approval of the Stadium Developer’s retention of Hunt/Moss to manage the construction of the Public Infrastructure Work; and in the alternative, to authorize the County to contract with an appropriately licensed contractor for the management of the construction of the Public Infrastructure Work, for the reasons set forth above and as otherwise outlined in the accompanying memorandum, formal bidding being waived in this instance by a two-thirds (2/3) vote of the membership of the Board.
Section 6. This Board hereby approves the conveyance to the Stadium Operator of the naming rights to the Stadium Premises in consideration of the terms and provisions of the Stadium Agreements, subject to the provisions of the Operating Agreement regarding such naming rights and subject to the prior fulfillment of the Conditions Precedent (as such term is defined below).
Section 7. This Board hereby approves the terms of the Stadium Agreements.
Section 8. The County Mayor or the County Mayor’s designee shall have the following authority:
(a) to execute such other documents and to take such action as may be necessary to execute and give effect to the intent of this resolution;
(b) to expend monies identified in the Construction Administration Agreement and its exhibits, including contingencies specifically identified therein;
(c) to exercise such delegated authority as is specifically identified in the Stadium Agreements ;
(d) for the purposes specifically set forth in the Construction Administration Agreement, to expend funds from the following Dedicated Allowances, with the maximum limitations set forth below:
(i) Four Million Three Hundred Thousand Dollars ($4,300,000) for County soft costs, more particularly identified as third party reimbursable amounts for owner representative services, legal fees, and fees for construction administration, and
(ii) Five Million Dollars ($5,000,000) for Owner’s Contingency, to address scope changes and unforeseen conditions in Public Infrastructure Work and to satisfy Governmentally Caused Overruns caused by the County; and
(e) to award time extensions up to the maximums established in the operative documents, all subject to the terms, conditions and limitations set forth in the Stadium Agreements.
In addition, and notwithstanding any of the foregoing, the County Mayor or the County Mayor’s designee shall be required to seek Board approval for any approvals, consents, actions, events or undertakings that would violate, alter, or ignore the substantive provisions of the Stadium Agreements, or that would create a financial obligation, cost or expense to the County that is greater than the delegated procurement authority of the County Mayor, as set forth in the County Charter, County Code, and any administrative or implementing orders.
Section 9. This Resolution shall become effective upon the occurrence of all of the following: (a) the approval by the City Commission of the City of Miami by four-fifths of the Commission’s membership of a waiver of competitive bidding in accordance with Section 255.20, Florida Statutes, to authorize the Stadium Developer’s retention of Hunt/Moss to manage the construction of the Public Infrastructure Work; (b) the proper execution by the City, the Stadium Developer, the Stadium Operator, and Florida Marlins, L.P., as the case may be, of such Stadium Agreements in substantially the form attached to this resolution; (c) the proper execution by a duly authorized representative of Double Play Company, the owner of Florida Marlins, L.P., of Exhibit M to the Construction Administration Agreement in the form attached to this resolution; and (d) approval by the Office of the County Attorney as to legal sufficiency of such executions (collectively, the “Conditions Precedent”). The Board hereby authorizes the County Mayor or the County Mayor’s designee to execute the Stadium Agreements on or after the effective date of this Resolution.
Section 10. This Board hereby waives the requirements of Resolution No. R-130-06 related to the requirement that the County Manager not place items on the Commission agenda seeking approval of a contract and authority to execute same until the underlying contract is completely negotiated, in final form and executed by all non-County parties.
Section 11. This Board hereby directs the County Mayor to submit monthly reports to this Board regarding the Construction Manager’s progress and compliance with the CSBE, SBE, CBE, CWP, Construction Outreach Program, and Outreach Program.

The Chairperson thereupon declared the resolution duly passed and adopted this 23rd day of March, 2009. This resolution shall become effective ten (10) days after the date of its adoption unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board, provided that by such date all of the conditions set forth in Section 9 above have been satisfied, and if not, by such later date as all of such conditions are satisfied. In no event, shall the conditions be satisfied later than June 1, 2009, or this resolution shall become null and void.

On February 13, 2009, the Board of County Commissioners canceled a previously scheduled Special Meeting of the Board following unexpected delays to the City of Miami’s consideration of the Baseball Stadium Agreements. Those agreements were provided to the Board of County Commissioners approximately three weeks earlier and remain substantially unchanged. In the interim, however, continued negotiations have produced some substantive changes and corrections of a number of scrivener’s errors. In no case was the County’s position weakened, and in many cases it was notably strengthened. Following is a summary of the substantive changes agreed to since the previous distribution of the agreements. Explanation of those changes is also noted in the appropriate sections of the body of this memorandum.

The Resolution accompanying this item has been amended to include a provision making the effective date of the Resolution conditioned upon the approval by the City Commission of the bid waiver necessary to retain Hunt/Moss to manage the Public Infrastructure Work. The decision to recommend Hunt/Moss as the Public Infrastructure Construction Manager for the project provides an important and significant benefit to the County and the City because it significantly reduces the risk exposure to governmentally caused overruns by allowing for a single Construction Manager to manage and coordinate the scheduling and performance of the public infrastructure work. As such, I am not willing to recommend approval of this project unless and until the City of Miami obtains the required affirmative vote of four-fifths of the City Commission’s membership.

The Construction Administration Agreement (CAA) has been amended to incorporate agreed-upon changes to Sections 5.2(b), addition of Sections 5.2(f) and (g), changes to 11.1.1, and minor changes to Exhibit J as follows:

The changes to Section 5.2(b) include the following: a) Inclusion of a City designee on the The Review Committee, which sets recommended goals for the participation of Small Business Enterprises (SBE),Community Small Business Enterprises (CSBE) and the Community Workforce Program (CWP). The City’s designee would only participate in the review of projects directly related to the ballpark project and related public infrastructure work; b) language requiring that CSBE’s and SBE’s that have an actual place of business in the County, including the County’s Designated Target Areas (DTA) and City-designated Neighborhood Development Zones (NDZ) be given equal opportunity to compete for business in the construction of the Baseball Stadium Project; c) language requiring the Stadium Developer and Construction Manager to employ a comprehensive outreach program to identify, recruit, educate and assist small and local businesses for the Baseball Stadium Project; d) language requiring that the Construction Management Agreement’s prompt-payment language require the Construction Manager to pay all prime contractors within five (5) business days of its receipt of payment, and that each prime contractor pay its subcontractors and/or suppliers within five (5) business days, and that CSBE’s and SBE’s be paid within 48 hours, as required by County ordinance; e) language clarifying that the current CWP goal is 10 percent, and that, if revised, any modification will be established by The Review Committee in accordance with the same procedure used for establishing CSBE and SBE goals; f) language requiring the Stadium Developer to cause the Construction Manager to use diligent efforts to recruit workers from both and the County’s DTA’s and the City’s NDZ’s to satisfy the CWP goal, subject to the CWP Ordinance; and g) language creating the Construction Outreach Program, which is designed to increase small-business participation during the construction of the baseball stadium with a view to supporting the aspirational small-business and local hiring goals. Those goals aspire to have as many local workers and local firms as reasonably practical and aspire to have at least 50 percent of the workers residents of Miami-Dade County, 20 percent of which are residents of the City of Miami, and to aspire to have at least 35 percent of the firms hired as subcontractors on the project be firms located within Miami-Dade County.

Section 5.2(f) was added to the CAA to require the Stadium Developer to require the Construction Manager to include in each bid package provisions relating to criteria for utilization of apprentices and trainees from certified Apprenticeship Programs.

Section 11.1.1 was amended to clarify that, prior to July 1, 2009, neither the team, the City nor the County may exercise the Termination for Convenience once the County has executed a final bond purchase agreement and/or completed a competitive sale with respect to the County Bonds backed with Convention Development Tax (CDT) and Professional Sports Franchise Facility Tax (PST)/Tourist Development Tax (TDT).

Exhibit J, related to the Sales Tax Procurement Procedures, incorporated a change requested by the State Department of Revenue to clarify that the County would be directly invoiced by vendors to purchases made under the program.

Exhibit P was added to depict Miami-Dade County’s Designated Target Areas and City of Miami’s Neighborhood Development Zones.

The Operating Agreement has been amended to incorporate agreed-upon changes to Section 6.3 and Section 7.1(a), inclusion of a new Section 7.1(f), and changes to Section 7.2 as follows:

Section 6.3 related to Stadium Event Proceeds further improves the benefits to the County by increasing the number of opportunities whereby additional revenues would be generated for, and deposited to, the Capital Reserve Fund.

Section 7.1(a) adds language requiring the Operator or the Team to make an annual financial contribution through the Team Foundation in the amount of $500,000. For each of the first 7½ years of the agreement, $100,000 of this amount shall be paid to the Parks Foundation of Miami-Dade County, Inc. and $25,000 to the City’s Heart of Our Parks Fund for baseball-related youth and community-based programs.

Section 7.1(f) was added to the Operating Agreement to provide that the Team shall build or improve a total of 39 baseball fields in Miami-Dade County, including at least three (3) in each Miami-Dade County Commission district and at least two (2) within each City of Miami Commission District. The Team agrees to build or improve at least one baseball field each year of the Term.

Section 7.2 was amended to expand language related to the Team’s small business outreach program to state that the Stadium Operator will participate in Major League Baseball Diverse Business Partners Program and jointly develop with the County and the City the Outreach Program. The Outreach Program will be designed to increase small-business and local resident participation during the operation of the baseball stadium, with a view to supporting aspirational goals of awarding 15 percent of contracts to small businesses located in the DTA’s and NDZ’s, and the aspirational goal of 25 percent of stadium workers residents of the DTA’s and NDZ’s, and the aspirational goal of at least 50 percent of stadium workers residents of Miami-Dade County, 20 percent of whom shall be City of Miami residents. The County Manager and City Manager will present the final terms of the Outreach Program to the Board and City Commission for approval.

The City Parking Agreement includes three new definitions in Article I (to support a newly added Section 4.3), and includes new language in Article II and Section 4.8 as follows:

Article II adds language relating to a cap on the $94 million estimated cost of the Parking Facilities, further states that ad-valorem revenues will not be used to fund its construction, and, if the cost does exceed $94 million the number of parking spaces will be reduced accordingly.

Section 4.8 also required the inclusion of similar language on the ability to reduce the number of spaces.

Section 4.3 has been added to establish that the Construction Manager for the Parking Facilities shall be required to adhere to small business and local workforce goals and measures that mirror those of the County.

Sections 6 and 7 of the Non-Relocation Agreement were amended as follows:

Section 6, related to “Payment Upon Sale of Team,” was amended to further increase both, the number of years the provision applies (from 7 years to 10 years), and, the potential maximum percentage payout (from 18% to 70%).

Section 7, related to “Annual Payment,” was amended to clarify that the annual rent payment continues through the Term of the Operating Agreement.

Introduction
At the February 21, 2008, meeting of the Board of County Commissioners, the Baseball Stadium Agreement (BSA) between Miami-Dade County (County), the City of Miami (City) and the Florida Marlins (Team) was approved. Incorporated into that approval was direction to staff to negotiate final agreements regarding the construction, operation and related issues for a ballpark for the soon to be Miami Marlins. We believe this proposed set of agreements is the best possible deal the County could negotiate at this time.

The attached Stadium Agreements are in substantially the same form as those contained in the binder you received on January 27, 2009, and the follow-up distribution prior to the Special Meeting scheduled (but never held) for February 13, 2009. There have been changes to correct scrivener’s errors, section references, and other amendments, both substantive and minor in nature. Each Stadium Agreement includes a cover sheet that describes the changes that occurred between the January 27 distribution and this distribution. In addition, the changes since February 13 were detailed above and are also described in the attached Supplemental Item No. 1.

The negotiations, conducted over the last 13 months, have produced a proposed deal that is better, stronger and safer for the County than was required by the terms of the BSA. The Team has increased its contribution to the project by nearly $9 million. The County’s exposure to overruns and other unexpected costs – while impossible to eliminate completely – has been dramatically reduced. The County and City will have broad access to use the stadium during the off-season without sacrificing any of the in-season promises made in the BSA. Staff secured twice as many donated tickets from the Team for non-profit groups, additional low-cost tickets for youth and senior-citizen fans, nearly 50 percent more public and non-profit use of suite seats, and additional opportunities for shared income from non-baseball Stadium Events. Stadium construction will incorporate Community Small Business Enterprise (CSBE), Small Business Enterprise (SBE) and Community Workforce Program (CWP) programs, including a full-time compliance monitor. Agreements for labor peace and division of off-duty police have been fully incorporated. The Team’s payment to the County in the event of an ownership change has increased significantly, and the Team is obligated to donate $750,000 to the Parks Foundation of Miami-Dade County, Inc., donate $187,500 to the City’s Heart of Our Parks Fund and build or renovate at least 39 public baseball fields across the County.

The plan we are considering has County support for the stadium funded with tourist taxes and with general obligation bond proceeds specifically approved by the voters for the Orange Bowl site. The County would also issue covenant to budget and appropriate debt that would be offset by annual rent payments from the Team. Unlike other jurisdictions that have funded new sports stadiums in recent years, we have not imposed any new taxes or raised existing ones to fund this project. But important changes to the global credit market and national economy have impacted the County’s financing plans for the project. Staff has analyzed the revenue projections in great detail, looking at the newest available data. Financing of this magnitude is undeniably more complicated and potentially more costly than a more straightforward conventional financing. Like any deal of this scope and importance, the costs and risks should be weighed against the project and its rewards. These agreements have been structured to give the Administration and the Board more time to ensure credit markets have time to further improve over the coming months.

Today’s global economic crisis and the collapse of the credit markets were not contemplated in February 2008. The ability to issue the bonds required to meet our funding obligations under these agreements is being monitored closely and analyzed by our financial advisors and financial staff. I have spent a great deal of time over the past three months working with our Finance Department, our financial advisors, our Chief Economist, as well as the banks interested in securing the financing for the Team. We have not only considered where the credit markets are today, but also where they potentially could be over the coming months. Additionally, I recently met with bankers from some of the nation’s largest banks involved in sports facility financings (Citigroup, Bank of America, and J.P. Morgan), as well as Goldman Sachs, all of which are interested in doing business with the Team for their portion of the stadium funding. They indicated that there is an appetite in the marketplace for these types of financings, and that they could secure the Team portion of the financing even in today’s market. Based on our research, I feel quite comfortable that the Team will be able to secure its portion of the stadium project debt.

In an abundance of caution, I specifically requested and all parties agreed to include a Termination for Convenience clause in the CAA that allows the parties to walk away from this deal prior to July 1, 2009. This gives the County more time to evaluate the market’s appetite for public stadium debt, to consider our local economy’s continuing reaction to the national and global recession, to monitor the South Florida tourist economy during the busiest months of our yearly tourist season, to gauge any market reactions to federal economic stimulus initiatives, and to assess any adverse impacts on our funding plan resulting from the State legislative session that is now underway. The CAA provides that if by July 1, 2009, the County is able to issue bonds secured by Convention Development Tax (CDT) and Professional Sports Franchise Tax (PST)/Tourist Development Tax (TDT) revenue streams in an amount sufficient to fund $304.6 million, the matter will not be brought back to the Board for consideration of termination of the Stadium Agreements. Such matter would be presented to the Board for action prior to the July 1 deadline. The significance of this date was to allow as much time as possible between approval of these Agreements and sale of the bonds to see what issues, if any, might impact the County during the State Legislative Session, to see what improvements may develop in the bond markets, to understand the impacts of the federal government’s American Recovery and Reinvestment Act (ARRA), and to have the most current projections related to the performance of tourist taxes. While July 1 is the final opportunity to terminate without recourse, there is also a provision that allows the County and City to terminate prior to June 1 with a reduced cap on reimbursable interim costs (discussed further on Page 8). If we are able to issue all of the debt required and assuming the Termination for Convenience is not exercised for other reasons by any of the parties, we will then move forward with construction as planned. However, in no event may the City, the Team or the County exercise the Termination for Convenience once the County has executed a final bond purchase agreement and/or completed a competitive sale with respect to the County Bonds backed with tourist taxes. This improvement over the earlier version of the Agreements further protects the County’s investment.

Recommendation
It is recommended that the Board approve the accompanying Resolution authorizing execution of the Stadium Agreements required for the design, operation, and construction of a new ballpark, public infrastructure work, and accompanying parking structures for the future Miami Marlins at the former Orange Bowl site. The Stadium Agreements include the Assurance, Non-Relocation, City Parking, Operating, and Construction Administration (CAA) Agreements. The CAA requires a two-thirds vote of the members present in order to select Marlins Stadium Developer, LLC, as the developer for the project, and to authorize the waiver of formal bid procedures for the purchase of the construction materials listed in Exhibit J of the CAA for the sales tax procurement program.

Additionally, following a public hearing, nine votes are required to waive formal bid procedures and select Hunt/Moss, a Joint Venture, the construction manager that has already been competitively selected by the developer to construct the stadium, to also perform the public infrastructure work subject to successful negotiations, and, in the alternative to select another licensed contractor to perform such work. Please be mindful that many of the protections described in this memorandum with respect to cost overruns are dependent upon the selection by the County and the City of Hunt/Moss as the construction manager for the public infrastructure and the successful negotiation and execution of a contract for that purpose. In the event Hunt/Moss is not selected by both the County and the City, the CAA provides for a renegotiation of the CAA to require the County and the City to select an architect and another appropriately licensed contractor to manage the design and construction of the Public Infrastructure, subject to Board approval. In this scenario, if the parties have not approved such amendment to the CAA, we will bring an item to the Board for consideration of termination prior to July 1st, 2009. However, while an alternative is provided in the CAA, as stated at the opening of this memorandum, we do not recommend moving forward with this deal unless Hunt/Moss has been approved as the Construction Manager for the Public Infrastructure Work.

The Operating Agreement requires a two-thirds vote of the members present in order to select Marlins Stadium Operator, LLC, as the operator of the stadium, and requires a public hearing pursuant to Section 2-1 of the Miami-Dade County Code, Rule 9.02 relating to naming of public facilities and allow for automatic approval or approval by the County Representative of a stadium name that meets the naming rights criteria listed in Section 4.7 of the Operating Agreement. Furthermore, it is in the best interest of the County to waive the provisions of Resolution No. R-130-06 requiring that all agreements be in final executed form before consideration by the Board.

Scope
While the project will be located in District 5, the overall impact is countywide in nature.

Fiscal Impact/Funding Sources
As was initially contemplated when the BSA was approved on February 21, 2008, the total construction cost of the baseball stadium is $515 million. City and County combined public infrastructure, project management costs, and Leadership in Energy and Environmental Design (LEED) certification costs account for another $29.5 million. The Team will contribute $120 million, consisting of $119 million for the construction of the stadium and $1 million towards the public infrastructure costs for design, to be credited to the County’s and the City’s shared funding of infrastructure constructed by the Team, as well as making an annual rent payment of $2.3 million beginning in the first stadium operating year (anticipated to be April 2012), escalating at two percent per year for at least 35 years. County funding for the stadium construction, infrastructure, LEED certification, and project management totals $364.39 million including $347.5 million for the stadium construction, $10.837 million for public infrastructure hard costs, $1.75 million for LEED certification, and $4.3 million for the County’s representative, project management and IPSIG expenses. The City will contribute $25.6 million, including $13.5 million for stadium construction and $10.837 million for infrastructure and project management costs and $1.75 million for its share of LEED certification. The City will also provide $60 million toward the construction of four on-site parking garages and surface lots to provide approximately 5,500 parking spaces at an estimated cost of $94 million. In the event the City’s contribution is insufficient to provide the full number of parking spaces, the Agreements only require the construction of as many parking spaces as the $94 million is able to yield. An item amending an interlocal agreement between the City and the County that helps support this funding is presented as a separate item on this agenda. The balance of the parking cost will be covered by contracted payments from the Team for use of parking spaces for home games. The City also contributed the land for the ballpark and associated garages and incurred demolition, clean-up and environmental costs associated with the Orange Bowl site.

The optimal financing plan developed has the County issuing debt supported by CDT, TDT, PST and non-ad valorem revenues, as well as funding from the Building Better Communities (BBC) general obligation bond program. It is anticipated that CDT bonds will be issued in an amount not to exceed $81 million and PST bonds backed by a secondary pledge of TDT will be issued in an amount not to exceed $245 million, including financing costs and assuming the County can secure a debt service reserve insurance policy or other reserve credit facility. Additional bonds/debt in the amount of $39 million will be secured by a covenant to budget and appropriate legally available non ad valorem revenues annually for debt service. While not paid directly from the Team’s rent payments, the annual debt service payments on such additional bonds/debt are anticipated to be offset by such rent payments. The BBC bond issuance will not exceed $55 million (including financing costs), utilizing the $50 million allocation for capital costs previously programmed for Orange Bowl renovations pursuant to Resolution R-1371-07 adopted on December 18, 2007. If TDT funds are used as a secondary pledge to make any PST debt service payments, the 20 percent share of TDT revenues dedicated to be spent by County ordinance within the boundaries of the City of Miami shall be used first. It is also important to note that these tourist taxes (CDT, TDT and PST) cannot be used for general government funding purposes, such as social services, public safety, and public education. Due to pending litigation, the County had to secure a “no-merit” opinion from Bond Counsel prior to proceeding with this plan. Without such an opinion, none of the bonds would be marketable. In a typical bond transaction, the investors rely on an unqualified tax exempt opinion rendered by nationally recognized bond counsel. At the current time, the County’s bond counsel has completed its analysis and is willing to issue a ‘‘no merit” opinion in connection with the issuance of the BBC Bonds, PST/TDT Bonds and CDT Bonds, provided there are no adverse changes in the law or in the case between now and the date on which each of the Bonds are issued. The County Attorney’s office will issue a similar opinion. A second lawsuit was filed recently by two citizens alleging that the City and County violated the Sunshine Law in connection with the negotiations of the Stadium Agreements by each staff. This additional suit will have to be disclosed to potential bondholders in the offering documents used to market the bonds. It is not clear at this point what effect the no-merit opinion and this new litigation will have on the sale of the bonds. We intend to continue to monitor the economy closely over the coming weeks to ensure market conditions and tourist tax revenues provide the best possible timing for our efforts to borrow the funds for this project.

In addition to these financing proceeds, Water and Sewer funds will be utilized to fund water/wastewater eligible costs in the vicinity of the stadium project. CDT, TDT and PST revenues in excess of that required for debt service payments and necessary reserves, as well as interest earned on the proceeds of the tourist tax bonds and, if necessary, the BBC bonds, will also be used to support infrastructure and project management costs. Should BBC funding be necessary, an item approving a significant modification and the application of BBC bond proceeds and interest earnings will be brought to the Board for approval. Exhibit K to the CAA details the total project budget including both stadium construction and related infrastructure and project management costs.

While near-term tourist tax revenues are not anticipated to grow at levels experienced in recent years, at this time we feel comfortable that these revenue sources have the capacity to absorb the required debt. Our intent is to structure debt issuances to optimize the revenue streams over the next 30 to 40 years similar to existing County debt issues supported by these revenue streams. Supplement 2 to this item shows numerous conservative cash flow analyses for the CDT, TDT and PST revenue streams, along with our planned shortfall reserve and excess capacity. Historical year-to-year average growth since the inception of these taxes is 7.6% for the CDT, 6.14% for the TDT and 5.55% for the PST. As you can see, there remains limited capacity for other eligible projects including the New World Symphony. As market conditions change and tourist tax revenue projections are adjusted, we will update the Board. As mentioned before, a provision of the CAA allows for termination of the baseball stadium agreements prior to July 1, 2009 for the convenience of any party, including should the financial resources required to support this project not be obtainable. Once again, no party may terminate once the County has committed to the sale of bonds backed by tourist taxes.

This plan is certainly not the preferred scenario for any of the parties. For the Team, their initial timeline called for a June 1 groundbreaking that allowed for a 34-month construction schedule and an April 2012 opening. The termination provision discussed above pushes the construction start date back by one month. To ensure that April 2012 remains a possibility, work on the project will have to continue between now and the potential termination date and costs will be incurred by all parties, just as would be the case if the County had sold its bonds as of the approval of these agreements. The costs to be incurred prior to July 1 include payments to the Construction Manager for pre-construction services, stadium-related hard costs, permitting, and testing and inspection services. It was agreed between the parties that the estimated $20.5 million would be split between the Team ($10 million), the County ($7 million) and the City ($3.5 million). The $7 million and $3.5 million figures represent not-to-exceed amounts for designated County and City costs. Additionally, as mentioned previously, if the termination occurs prior to June 1, the reimbursable interim costs above would be reduced for the County and City. The not-to-exceed amounts would be split as follows: Team ($14 million), County ($4 million), and City ($2.5 million). If construction moves forward, the $7 million will be reimbursed from the previously indicated County funding sources for construction of the ballpark, funding that we would have spent anyway had the bonds been issued concurrent with approval of the Stadium Agreements. If the Agreements are terminated, the County will look to available PST or CDT funds that would otherwise have been provided to the City for the baseball project if it were to have gone forward to reimburse the Team for costs incurred up to the termination date.

Delegated Authorities
Attachment I details the delegated authorities for all the agreements being considered.

MANAGER'S BACKGROUND

Background
Miami-Dade County has been actively pursuing and committed in its efforts to develop a new ballpark for the residents of Miami-Dade County and the Florida Marlins for close to ten years. During this time we have evaluated numerous sites in multiple jurisdictions and have requested funding assistance from the state on several occasions. In March of 2005, the County, City and Team executed a Memorandum of Understanding for the development of a new ballpark at the Orange Bowl site. That effort ultimately fell short when the state denied the final funding needed for the project. In 2006, the County and City of Hialeah worked with the Team and Major League Baseball (MLB) on assessing a site just west of I-75 and east of the Florida Turnpike. This site presented some major challenges, including the structure of a proposed tax increment financing district to provide funding for the project and the assembly of the required land to support a suburban ballpark. In late 2006, County staff identified a site located next to the Stephen P. Clark Government Center. The Government Center site had many positive attributes, namely its direct downtown location and easy access to mass transit. However, it was not possible to relocate the new Children’s Courthouse that is planned for that site. From a cost standpoint, the site required major, costly utility relocations, and, in addition, had a constrained construction and staging area that presented other complications. The University of Miami’s decision to leave the Orange Bowl and move its football program to Dolphin Stadium last year, reopened the Orange Bowl as a viable site for the new ballpark. Additionally, on October 16, 2007, the Board approved R-1173-07, which directed the administration to identify funding sources and to negotiate a BSA with the Team and the City of Miami for a site to be located at the former Orange Bowl site. The County, City, Team and MLB resumed negotiations of the BSA, which was ultimately approved by both the County and City Commissions on February 21, 2008. The BSA set the basic terms, conditions, and obligations that served as the construct for the final Stadium Agreements that are before you today for approval.

Since approval of the BSA, the parties have initiated the various site development requirements outlined in the BSA, such as demolishing the former Orange Bowl, conducting site and utility surveys, initiating the re-plat of the property, conducting environmental assessments and geo-technical studies, initiating the preliminary steps to obtain a Major Use Special Permit (MUSP) from the City of Miami, and conducting the preliminary architectural/design work necessary to ready the ballpark for construction when these Agreements are finally approved, all while continuing to negotiate the Stadium Agreements and defending a lengthy, time-consuming lawsuit.

A decision to provide funding to support the construction of a new stadium for the Miami Marlins is not a decision to oppose funding for the Convention Center on Miami Beach. Throughout the various efforts to negotiate funding for a stadium, provisions have been made to provide funding to support the Convention Center, the single most important engine for the tourism industry. In 1996, an amendment was made to the interlocal agreement with Miami Beach related to the South Pointe Redevelopment District and the distribution of CDT revenues. This amendment provided for up to a $4.5 million annual payment from CDT to Miami Beach, extended the life of the redevelopment district, and further provided for a $46.5 million payment to Miami Beach for Convention Center improvements. In 2001, a second amendment to that agreement extended the term of the $4.5 million annual payments for as long as debt for the Performance Arts Center (PAC) remained outstanding, provided an additional $15 million payment to Miami Beach for Convention Center improvements and authorized that a $50 million payment would be made to Miami Beach should CDT receipts not be dedicated to a baseball stadium by the end of 2003. In 2004, a final amendment was made that extended the term of the $4.5 million annual payment for as long as either PAC debt or debt related to a baseball stadium was outstanding (approximately 2046), eliminated the requirement that the $50 million payment be made but obligated the BBC program to include $55 million for the Convention Center, and increased South Pointe-related incremental payments to 95 percent of the revenue through 2017, up to $45 million. The net present value of all of these revenues exceeds $250 million. The purpose of the amendments to the interlocal agreement was to allow for funding for the PAC and the baseball stadium project while at the same time recognizing the importance of the Convention Center. As you can see, sufficient support to the Convention Center is available to fund planned improvements.

The construction of a baseball stadium will have a positive impact on our community. An economic analysis of the impact of the construction of a baseball stadium shows that a significant proportion, but not all, of those expenditures should involve local vendors and local labor. The economic impact projects that approximately 78 percent of the total construction costs representing local purchases of goods and services, and 40 percent of the design, engineering and other soft costs are expected to be provided by local vendors. The local purchases of goods and services directly associated with the construction of the ballpark during the development period are projected to support an average of nearly 3,300 employment positions per year. Two thousand fifty (2,050) of those projected jobs are directly supported by the construction activity. The construction of the ballpark is also expected to generate $357 million in labor compensation (includes employer provided benefits) during construction, representing $45,200 in average annual compensation per employment position generated. Gross business revenues (“gross economic output”) of $816 million are generated during the construction period, of which $455 million is County GDP.

Project Budget and Funding
Baseball Stadium Construction Budget
The estimated cost for the design, development, and construction of the ballpark remains at $515 million. As you are aware, it was announced in early December 2008 that the previous targeted completion date of April 2011 was pushed back a year until 2012. The 2011 construction schedule was based on an accelerated 29-month construction schedule. By moving the completion date to 2012, the Stadium Developer was able to lengthen the construction schedule to 34 months, decreasing acceleration, staffing, and overtime costs built into the shorter construction period and allowing the stadium project budget to remain at the same level as previously planned. Thus, the funding contributions from each party are the same as that approved in the BSA and are shown in Exhibit K to the CAA and discussed further below. Additionally, given the competitive nature of the construction industry in today’s stalled economy, we expect to see every favorable pricing on labor, materials, and supplies.

Our owner’s representative, URS/IFG, has reviewed the design of the project and construction estimates and concluded that they conform to the reasonable expectations for similar ballparks, that the construction schedule is reasonable and that the project budget appears to be reasonable and sufficient to complete the project. They also indicated that the two firms engaged for this project, Hunt/Moss and HOK Sport, have significant stadium and arena experience, including Major League Baseball retractable roof stadiums.

City Contribution to Project
The City’s contribution to the stadium construction budget is $13.5 million. The City is contributing the land (approximately 14 acres of the former Orange Bowl site for the stadium, as well as a 3 acre plaza area) and has paid for all costs associated with the demolition and disposal of the existing Orange Bowl stadium debris (final cost was $2.1 million). The City is also funding and constructing the parking structures and surface parking lots immediately adjacent to the stadium premises, sufficient to provide approximately 5,500 parking spaces, consistent with the City Parking Agreement accompanying this memorandum, at an estimated cost of $94 million. Under terms negotiated since the agreements were last distributed to the Board, the City’s $94 million contribution to the Parking Facilities is now capped – it is only responsible for the construction of as many parking spaces as that $94 million will yield. The revenue stream required by the City to leverage the $94 million necessary to construct the parking structures and surface lots will be provided from CDT funding provided in an Interlocal Agreement between the City of Miami and Miami-Dade County to be approved as a companion item on today’s agenda, and from revenues generated by the City from the sale of the parking spaces to the Team once the facilities are operational. This Interlocal is necessary in order to provide the County with the maximum flexibility to issue CDT bonds to meet its funding obligations. The City will also be contributing annual payments of $250,000 to the Capital Reserve Fund.

Team Contribution to Project
The Team’s contribution to the stadium project remains at $155 million, $154 million towards the stadium and $1 million for public infrastructure costs, including design. As approved in the BSA, the Team will privately finance $120 million of the stadium and infrastructure construction costs and make annual rent payments to the County, beginning in the first operating year, with an initial payment of $2.3 million per year, now being adjusted to be increased by 2 percent annually through the initial term of the Agreement. As a result, the County will issue an additional $35 million in debt secured by a covenant to budget and appropriate legally available non ad valorem revenue, recognizing the Team rent payments will more than cover the annual required debt service amounts on such additional debt. In fact, the Team rent payments actually have an estimated net present value of $44 million. We intend to use the excess funds to help cover County ballpark project related costs.

Beyond the funding for the stadium and in addition to the rent payment, the Team will also be providing annual payments of $750,000 to the Capital Reserve Fund. Those payments will total at least $26.25 million through the term of the Operating Agreement and will be used for capital repairs and improvements to the major components and systems of the ballpark.

Public Infrastructure Funding
One of the unknown project costs at the time of the BSA approval was that of the public infrastructure work required of the County and the City. At that time, interest yields were substantially higher, and it was anticipated that interest earnings from the stadium bond proceeds would entirely fund the County’s portion of the public infrastructure work, along with other project management costs. It is fortunate that our original rough estimates for the relatively low cost of the public infrastructure work have been on target. However, given that we will likely not be selling bonds until the summer, and the very low interest rates for invested funds, the amount of interest earnings will be significantly less than anticipated last year. It became necessary to look at alternative funding sources for the public infrastructure work to supplant interest earnings. Our funding plan is described below.

The County and City have agreed to a Scope of Work, attached to the CAA as Exhibit G, for public infrastructure that totals approximately $16.6 million, which will be split equally between the two parties. In addition to the public infrastructure costs, approximately $6 million is allocated for general conditions, contingencies, and minor environmental mitigation costs. Finally, $1.2 million of allowances for potential government-requested scope changes is included in Exhibit G. If executed, these allowances would be funded exclusively by the City. The public infrastructure scope includes the installation of replacement water and sewer lines, stormwater system improvements, the provision of electrical service to the site, road improvements and necessary sidewalks, lighting and traffic and signalization on roads immediately adjacent to the future baseball stadium. The City and County have agreed to share these costs and any cost increases and overruns not covered by the Team equally and the programmed cost to the County will be approximately $10.837 million. Comparatively, the Minnesota Twins ballpark, currently under construction, has a public infrastructure budget of $65 million, while the two stadiums set to open in New York City incurred hundreds of millions of dollars in public infrastructure work. The County’s portion of the public infrastructure work is anticipated to be funded from a combination of sources including bond proceeds, interest earnings on project bonds, eligible funding available from the Water and Sewer Department, and, if needed, unrestricted tourist tax fund balances or covenant to budget and appropriate County debt for which annual payments would be funded by Team rent payments.

Project Management/Oversight Funding
In order for the County to properly manage and perform its obligations under these Agreements, there are certain costs, budgeted at approximately $4.3 million that will be incurred by the County during the construction phase of the project. Owner’s bond counsel and representative services have been procured in order to assist the County during the now-completed negotiations phase, the financing analysis, and to provide construction expertise/oversight during construction of the stadium to ensure the County’s interests are protected ($2.6 million). The County Inspector General has been designated as the Independent Private Sector Inspector General (IPSIG) for the duration of this project ($1 million), as required by County Code. Oversight of the project by County staff will be required throughout the duration of the project to make day-to-day decisions on behalf of the County and for general oversight of the County’s interests (approximately $700,000). The major project management costs mentioned above will be funded from bond interest earnings and other bond funds as described for public infrastructure costs.

Other Funding Obligations
The County and the City have committed to ensure the ballpark is LEED-certified, with the goal of obtaining a LEED Silver designation, as required by the County’s Sustainable Buildings Ordinance. An improvement from the BSA, was the Team agreeing to cap the County and City’s total exposure to incremental LEED costs at $3.5 million, to be split ($1.75 million each for the County and the City). LEED costs will be funded from the same sources as those supporting public infrastructure costs. The County also has an annual payment obligation of $750,000 after the stadium opens through the life of the Stadium Operating Agreement to jointly fund the Capital Reserve Fund along with the Team ($750,000 per year) and the City ($250,000 per year), as mentioned before.

With any large complex project there are risks, which have been, in our judgment, mitigated to the greatest extent possible. While the risk of governmentally-caused overruns has not been completely eliminated, concessions by the Team have greatly reduced the County’s exposure, limiting those risks mostly to actions that are under the control of the County. For example, actions that require the County to review and execute documents, approve permits, meet deadlines to review design documents, etc., are all actions that if properly managed will not subject the County to exposure for delaying the stadium construction. Nevertheless, in order to ensure that an immediate source of funding is available to deal with situations that require additional funding beyond those sources identified in this memorandum, a general reserve of $5 million has been established. I reiterate that, other than the funding being provided for this project, assuming Hunt/Moss is approved by the County and the City as the construction manager for the public infrastructure work, the County has an extremely limited role in the actual design and construction of this ballpark and the public infrastructure. Consequently, proper management of the deadlines required to be met by the County in reviewing and executing required documents, granting approvals, and approving any permits, will ensure that we are performing our role properly and ensure we avoid any governmentally-caused overruns.

Stadium Agreements
Construction Administration Agreement (CAA)
Building a baseball stadium is an incredibly complex proposition, requiring the interaction of all the parties, their staffs, their contractors and sub-contractors and numerous peripheral agencies. After intensive negotiations, however, I believe we have reached agreement on a plan that does what our County team always envisioned, one that allows professionals to build the stadium with a fair division of public and private funding, backed by the strongest possible protection against unforeseen costs.

The CAA is by far the most complex of the five stadium agreements, encompassing the responsibilities and obligations of each party - the County, City, and Stadium Developer - from the planning and site development phase all the way through construction of the ballpark. As part of the CAA, the Board is considering the waiver of formal bid procedures for selection of Marlins Stadium Developer, LLC as the developer for the project, thus requiring a two-thirds vote of Board members present. As the stadium developer, the Team is responsible for and has already competitively selected the construction manager (Hunt/Moss) and selected the design professionals (HOK Sport), who will be designing and constructing the ballpark.

As was discussed previously, the stadium is to be located at the former Orange Bowl site. It is proposed as a 37,000-spectator, 927,000 square foot, natural grass playing field, retractable roof stadium. The footprint of the ballpark and accompanying plaza area total approximately 17 acres. The Orange Bowl property is currently owned by the City of Miami, but the 17 acres mentioned above will be conveyed to Miami-Dade County, which will then own the land and the stadium structure.

As mentioned, HOK Sport (HOK) is the primary architectural and design firm that has been selected by the Stadium Developer to provide the architectural and design services necessary for the design and construction of the baseball stadium and the public infrastructure work. HOK is world renowned for designing stadiums, arenas, and other sports facilities, and has been involved in almost every Major League Baseball ballpark constructed in the last 15 years. A 5.81 percent CBE A/E goal was assigned for the stadium and public infrastructure work from the SBD Review Committee.

In addition to retaining HOK, the Stadium Developer competitively selected the joint venture of Hunt/Moss Construction to serve as the construction manager for the project. Hunt/Moss is also world renown in arena, stadium, and sports facility construction, with extensive experience in retractable roof stadiums, including Chase Field, Miller Park, and Safeco Field. The selection process by the Stadium Developer for the selection of Hunt/Moss mirrored a County selection process. Prior to advertising the Request for Qualifications and Request for Proposal, the Stadium Developer requested CSBE and SBE goals on the pre-construction services portion of the contract. Such goals were assigned by the Review Committee at 8.49 percent and 6 percent, for CSBE and SBE, respectively. Subsequent to the above-referenced selection process, the decision was made to also have Hunt/Moss perform the public infrastructure work for the project as well. Additionally, as was included in the RFQ/RFP documents, the Stadium Developer and Hunt/Moss will be required to comply with State and County rules applicable to the bidding and construction of publicly-owned and/or publicly financed facilities, including, but not limited to CSBE, SBE, CWP, and Responsible Wages programs. To be very clear, the goals mentioned above were only for preconstruction services, the Department of Small Business Development (SBD) will recommend further goals on each construction trade package for the baseball stadium and the public infrastructure work. SBD will also provide at least one full-time staff person to monitor and ensure compliance by the Stadium Developer with the County programs mentioned above. The Stadium Developer and MLB have agreed to contribute one-third each toward the cost of this dedicated staff person for the project, with the County covering the other one-third. Since the previous distribution of the Agreements, the County has also agreed to designate to The Review Committee one member from the City, who will participate only in regards to recommending goals for ballpark and public infrastructure work.

With the Architect and Construction Manager hired, work began on developing the Schematic Design Drawings and Schematic Design Construction Estimate in July 2008. These were received by the County on November 19, 2008. At each level of design (schematic, design, construction) documents, the County has review rights over said documents to ensure they are consistent with the Project Program Statement attached as Exhibit D to the CAA. Our Owner’s Representative, URS/IFG, reviewed the Schematic Design Drawings and Construction Estimate provided in November, and made the following observations:

1) The Project Program Statement approved in the BSA was reduced by 41,000 square feet to achieve the $515 million stadium construction budget (the 41,000 square feet was adjusted from the overall floor plan by making slight adjustments to areas such as kitchens, retail areas, reductions in suite sizes, club lounges, media/broadcast facilities, clubhouse facilities, janitorial and event staff facilities, and lobbies for premium seat holders. These adjustments are minimal and will not impact the baseball fan experience at the stadium,

2) The drawings and specifications conform to reasonable expectations for similar ballparks,

3) The projected 34-month construction schedule (substantial completion by March 1, 2012) is reasonable, but design activities are being compressed to meet such deadlines, and, will require disciplined schedule management and coordination by the Marlins and their project team,

4) The project budget appears to be reasonable and should be sufficient to complete the project, subject to successful incorporation of the proposed value engineering,

5) The HOK and Hunt/Moss team have significant stadium and arena experience, including retractable roof stadiums and extensive experience working with MLB and MLB franchises.

The next phase of design will be completion of the design and development drawings by HOK. These drawings should be received in early April 2009, with application for foundation permits expected shortly thereafter. Assuming the project remains on schedule, the next major milestone will be the completion of the MUSP, which is essentially approval of the zoning for the project by the City of Miami. The MUSP hearing is currently scheduled for April 16, 2009. Approval at that time would clear the way for a July 1 construction start date.

As mentioned previously the County and City have committed, in accordance with the County’s Sustainable Building Ordinance, to achieving a LEED Silver Certification for the ballpark. The maximum exposure to the County and the City is $1.75 million each. The Washington Nationals have achieved LEED Silver Certification for their new ballpark and the Minnesota Twins are seeking basic LEED Certifications as they complete their new stadium.

A Project Coordination Team will include representatives from the County administration as well as the Board of County Commissioners to attend project status meetings lead by the Stadium Developer, to provide updates to all aspects of the project.

The Art in Public Places Program will apply to this project. The preliminary estimates call for $7.5 million to be set aside within the $515 stadium project budget for public art. The Department of Cultural Affairs and the Stadium Developer have already begun meeting to establish potential themes for the ballpark.

With regards to the Sales Tax Procurement Program, the County has submitted its request to the State Department of Revenue (DOR) for approval of our sales tax exemption procedures. We have had numerous discussions with DOR leading up to submittal of our application and during their ongoing review process and are confident that approval will be granted. The initial $515 million stadium budget assumes $4.4 million in savings from the sales tax procurement program. Savings achieved beyond the $4.4 million will accrue to the stadium budget. The benefit of the savings is to the project itself. If the stadium ends up on budget or under budget at the end of construction, any savings beyond the $4.4 million generated from the program will be deposited into the Capital Reserve Fund that will be established for major stadium repairs and renovations. Conversely, if the stadium costs exceed the budget any extra savings generated from this program will help offset the Stadium Developer’s cost overruns. The County’s role regarding purchased materials is extremely limited, therefore, so too is any cost exposure. The developer is responsible for identifying vendors, selecting materials, writing specifications for materials, obtaining quotes, and so on. The County’s responsibility is to simply process the purchase order provided by the developer. Liability for procured items is built into the builder’s risk insurance policy provided by the stadium developer. A technical change regarding this program has been incorporated into Exhibit J to clarify the County would be directly invoiced by vendors to purchases made under the program.

As was touched upon earlier in this memorandum, with any large complex project there are associated risks, all of which have been, in our judgment, limited to the extent possible. I also stated earlier that the County, while providing a majority of the funding for the stadium, has a limited role in the actual design and construction of this ballpark. Undoubtedly, as owners of the building, we have a vested interest in ensuring a successful project that is built on time and within budget. However, we also understand that the County is not in the business of building ballparks. There is a first-class team of architects and construction professionals who have extensive experience building these facilities who will be in control of the site when construction begins. We do not want to slow down progress of the stadium, but we do want to have our owner’s representative and the necessary oversight on site to stay on top of issues and protect the County’s interests.

When the BSA was approved, it was always understood that the County and City would pay for and perform the public infrastructure work. However, it was not so apparent at that time the extent to which the public infrastructure work would affect the project timeline, and, ultimately the level of risk exposure to the County and City. The Team also recognized that there are significant advantages to having the same construction manager build the stadium and perform the public infrastructure work on behalf of the County and City. Most importantly for the Team, shifting complete control of the construction schedule back to the team, allows significantly more flexibility in arranging/scheduling activities that otherwise would have depended on contractors under the control of the County or City to complete on time. For the County and City, and as is now written in the CAA and provided the County and the City approve Hunt/Moss to serve as the construction manager for the public infrastructure, the possibility of being assessed a governmentally-caused overrun as a result of delays in performing the public infrastructure work has been virtually eliminated as have any delays caused by private utilities, such as Florida Power and Light. We have significantly reduced potential risk exposures throughout the negotiations. While I cannot ensure that there will never be an overrun, or a contractor will never accuse the County or City of having caused them a delay, we have significantly minimized the risk to a level that I feel is manageable.

Operating Agreement
Whereas the CAA will be the primary focus of this project for the next three years during the construction phase, the Operating Agreement will come into play after construction of the ballpark is complete. It establishes the terms and conditions by which Marlins Stadium Operator, LLC (Operator) will operate and manage the ballpark for the duration of the agreement, which coincides with the term of the stadium related debt or 35 years, whichever is longer but in no event later than 2052. This virtually guarantees at least 35 more years of Major League Baseball in South Florida.

While the County will be the owners of the ballpark, the Operator will be in charge of all of the day-to-day operations of the ballpark, and all costs associated with the management of the ballpark, including maintenance and repairs, security, staffing, scheduling and contracting for events, ticket sales, insurance, concessions, etc. As such, the Operator will receive stadium-generated revenues, including ticket sales, concessions, suite licenses, advertising, broadcast rights, signage, and so on. Following a public hearing today pursuant to Section 2-1 of the Miami-Dade County Code, Rule 9.02, the Operating Agreement also authorizes the conveyance of naming rights for the ballpark premises to Marlins Stadium Operator, LLC. Any naming agreement must be approved in writing by the County Representative and cannot be associated with tobacco, adult entertainment or guns. In consideration for the granting of such rights, among other things the Operator will provide an initial $2.3 million annual payment to the County upon the first Operating year that will be increased by 2 percent each year throughout the initial term of this Agreement.

The County is entering into these Agreements for the purpose of creating a venue that can be enjoyed by the residents of Miami-Dade County, serve as an economic engine for the urban core area, and, dove-tailing with those benefits, keep the Marlins in South Florida with a franchise that, due to the new stadium, can now generate the revenues needed to obtain and retain a high caliber player roster that will bring better attendance to Marlins games, thus helping create a more successful, stable franchise. The County successfully demanded numerous improvements to the deal since the BSA was executed, including more public access to stadium events and nearly unfettered use of the stadium for public events during the off-season. Additionally, as was the case with the Team’s contribution to the stadium construction, this Operating Agreement is not substantially different than most other Operating Agreements executed between Major League Baseball teams in recent years. In almost all cases, the Team is the primary operator of the facility and most stadium-generated revenues go to the Team, as shown in the table on the following page.

Allocation of Stadium Revenues in Various Major League Baseball Operating Agreements/Leases

Maricopa King Harris Hamilton Hennepin Allegheny City of
Stadium Owner County County County Shared Shared County County County Philadelphia

Concession
Revenues 100% 100% 100% 100% 100% 100% 100% 100% 100%

Naming Rights Shared 100% 100% 100% 100% 100% 100% 100% 100%

Parking
Revenues 100% 100% 100% 100% 100% 100% 100% 100% 100%

Signage 100% 100% 100% 100% 100% 100% 100% 100% 100%

Suites Shared 100% 100% 100% 100% 100% 100% 100% 100%

Revs from
Non-Baseball
Events County Shared Team Team Team Team Shared Team Team

Day-to-Day
Operating
Expenses Team Team Team Shared Shared Team Team Team Team

The Operator will also be responsible for costs associated with providing off-duty public safety staffing at the stadium. This was a topic of great interest to all members of the Board during the approval of the BSA, and you may recall that a report was submitted to the Board in April 2008 outlining the agreed upon position of the County and City administrations on this issue. The language from that report, which basically provides for “curb-in” staffing on the Stadium Premises by Miami-Dade Police Department (MDPD), and “curb-out” staffing by the City of Miami (outside the Stadium Premises), for police off-duty services, and, joint provision of fire rescue off-duty services by both Fire Departments at the stadium, is incorporated into this Agreement.

For Community Event Dates, the BSA provided for a total of eight days each for the County and City throughout the entire year. The final Agreement negotiated between the parties was improved and calls for unlimited use for Community Events during non-baseball months, in addition to of four events for the County and four events for the City during baseball season.

As part of its civic responsibility to promote and contribute to charitable, educational and community organizations, the Team will actively promote its Florida Marlins Community Foundation, maximizing benefits for inner city youth programs. These include rebuilding youth baseball infrastructure through Major League Baseball’s various charities and programs, focusing on development of aggressive youth programs, requesting and encouraging its players to make public appearances in support of education, youth sports, or other public service activities, and providing attractive and meaningful programs designed to keep Major League Baseball games affordable for youth and the elderly in South Florida. Additionally, this includes providing at least 81,000 affordable seats for the youth and elderly in South Florida, and distributing at least 10,000 regular season individual tickets (increased by 5,000 from the BSA) on a complimentary basis each year. The County and City will have access to a shared “community suite” designated for charity or public use. Each party can designate 40 games (increased from 27 games each in the BSA) for use of the suite. When the suite is used by youth charities, the Operator will also provide food and beverages. Outside of these agreements, Major League Baseball has agreed to establish a National Baseball Academy to be located in the City of Hialeah to train baseball professionals, including players, management, umpires and facility maintenance professionals. The Academy will only be built if the Marlins stay in Miami-Dade County.

A significant change since the previous distribution of these Agreements requires the Team, through the Foundation, to make considerable contributions to local agencies. Through the term of the Agreements, the Foundation will be obligated to contribute at least $500,000 a year. For the first 7½ years, $100,000 of that contribution per year will be donated to the Park Foundation of Miami-Dade County, Inc. and another $25,000 of it will be donated to the City’s Heart of Our Parks Fund. In addition to those monetary contributions, the Team will be required to build or renovate at least 39 public ballparks in the County. At least three of those ballparks must be located in each County Commission district, including at least 2 in each City Commission district. At least one ballpark must be built or renovated every year.

As stated earlier, the Capital Reserve Fund will be established for the purpose of providing a dedicated funding source for replacement, repair, and related capital improvements to the major components, systems, and equipment of the Stadium Premises. This Agreement provides for a collaborative annual approval of the Capital Reserve Fund budget as well as approval of the projects to be conducted each year, for the purposes of ensuring proper planning and management of the Capital Reserve Fund by all parties. Funds will be deposited into the Capital Reserve Fund by the Team ($750,000), County ($750,000), and City ($250,000) every year over the term of this Agreement for repair and replacement of capital equipment. To the extent funds in the Capital Reserve Fund are insufficient to fund capital replacement needs, the Stadium Operator has agreed to fund the deficiency in operating years 1 through 10. During operating years 11 through 35, the parties shall jointly determine funding responsibilities of each party for such deficiencies.

Another significant change since the previous distribution of these Agreements requires the Team to make larger contributions to the Capital Reserve Fund. Specifically, the Team is now obligated to place into the Fund all its proceeds from certain non-baseball events held at the ballpark. During the first 10 years of the Agreement, the Team will contribute its revenues from the 11th through 15th non-baseball events. Beginning in Year 11, the Team will contribute its revenues from the 11th through 20th non-baseball events.

The Operating Agreement includes a labor peace agreement to be executed between any labor organization representing food and beverage concessions workers and the concessionaire of the stadium. The labor peace agreement allows for labor representation and seeks to prohibit any labor organization and its members from engaging in any picketing, work stoppages, boycotts, or any other economic interference with the concessions.

Assurance Agreement
The Assurance Agreement serves as a backup pledge, or guarantee, from Florida Marlins, L.P. (the main owners of the baseball franchise) that the entity Marlins Stadium Developer, LLC (the developer constructing the ballpark on behalf of the owners of the baseball franchise) will meet all of its payment and performance obligations required under the CAA. This is necessary because the Marlins Stadium Developer is an affiliate created solely for construction of the ballpark and does not generate revenues other than those assigned to them from Florida Marlins, L.P., or other Team affiliates. As such, it is extremely important to have this guarantee that the Developer has the full faith and financial backing of Florida Marlins, L.P.

As an example, the CAA calls for deposit of the Team’s stadium construction funding contribution by a certain time. If the Developer fails to make such contribution, the legal recourse of the County and/or City would be to Florida Marlins, LP to either make payment or ensure the performance obligations of the Developer, or, to make such payment or performance on the Developer’s behalf. This example extends to other obligations of the Developer in the CAA, including the commitment to pay for all non-governmentally caused cost overruns, to establish the financial instrument guaranteeing the initial $20 million in cost overruns, and to guarantee the Developer’s obligations to establish the required payment and performance bonds required under the CAA. During negotiations it was agreed that further assurances from the Team were necessary to provide additional comfort to the County and City that the Team would come up with their financing when needed. As a further protection to the County, language providing for a subordinated lien on the Marlins franchise was included in the Assurance Agreement. This subordinated lien will become effective no later than 60 days after the date of the Assurance Agreement and remain in place until the Team has secured its financing for the project.

There have been no substantial changes to the Assurance Agreement since the previous distribution of the Agreements.

Non-Relocation Agreement
In light of the significant financial investments being made by the City and the County for this project, it is extremely important that there is a contractual, long-term commitment from the Team to play baseball in the new stadium long after these Agreements are approved and the stadium is constructed. The Non-Relocation Agreement serves to provide that commitment. With certain specific exceptions related to casualty and other untenantable conditions of the stadium, it provides for a minimum 35-year covenant from the Team to use the stadium as its home field for all regular season and playoff games throughout the Term of the Agreement (35 years or the term of the stadium debt, whichever is longer), to discontinue discussions or negotiations involving relocation of the franchise, and to change its name to the Miami Marlins prior to substantial completion of the stadium.

This Agreement also contains the “payment upon sale of Team” provision. The purpose of this provision is not to enrich the County in the event of a Team sale, but to provide an inducement to the Team not to sell the Team. Our objective is to keep the Marlins here for at least 35 years and to ensure the current owners do not make an immediate windfall profit on this transaction. During negotiation of the Stadium Agreements the terms of this provision were improved upon by increasing the maximum potential payout percentage and increasing the number of years where the County and City would be eligible to receive a payment if a sale of the Team occurred. The payouts have been further improved upon, both by increasing the percentage and extending the term. The changes to this provision are shown below:

If the sale occurs in: BSA Percentage Prior Percentage Current Percentage
Year 1 10.0% 18.0% 70%
Year 2 9.0% 16.2% 60%
Year 3 7.0% 14.4% 50%
Year 4 6.0% 12.6% 30%
Year 5 5.0% 10.0% 10%
Year 6 Not applicable 7.5% 7.5%
Year 7 Not applicable 5.0% 5%
Year 8 Not applicable Not applicable 5%
Year 9 Not applicable Not applicable 5%
Year 10 Not applicable Not applicable 5%

City Parking Agreement
As part of the overall stadium project, the City of Miami has agreed to construct four parking structures and six surface lots, accommodating approximately 5,500 parking spaces around the stadium. The four parking garages would be located on the north and south sides of the stadium, and the six surface lots would be located on the east and west sides of the stadium on City-owned land that was formerly used as surface parking for University of Miami football games. The Team will purchase these spaces for each home game from the City of Miami at a pre-determined cost per space that will increase incrementally throughout the term of the City Parking Agreement.

The City is currently in the process of selecting their design team for the parking garages, and, expects to begin construction of the garages in early 2010. Initial plans for the garages include approximately 60,000 square feet of commercial/retail space. The City has budgeted $94 million for the construction of the garages and is solely responsible for their planning, design, construction, and operation. As discussed above, changes since the previous distribution of these documents cap the City’s contribution at $94 million and ensure the City will not need build any more parking spaces than that $94 million will yield.

Conclusion
At the direction of this Board, I have worked for the past year to negotiate the requisite agreements in order to build a state-of-the-art baseball facility for the Miami Marlins to call home. These negotiations have not been easy, but I believe that the final documents comprise the best possible agreements to protect the County while providing an asset to our community that will be enjoyed by our residents for years to come. While financial concerns may remain, due to the present uncertainty of the economy, these agreements have been structured so as to minimize potential losses, but allow this important project to proceed. The main purpose of the majority of the sources of funding is to support such a project, which can support job growth through its construction and retention of critical jobs through the ongoing operations. If this Board is desirous of having a baseball stadium in Miami-Dade County and having the Miami Marlins in that stadium, this is my recommended plan for achieving that goal.